ERIC JEROME WESTBROOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in sentencing the defendant as a habitual felony offender based on insufficient evidence of prior felonies and in failing to conform the written sentence to the oral pronouncement.
The defendant was convicted of robbery. The trial court sentenced him as a habitual felony offender, but the state only presented evidence of one prio…
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PER CURIAM.
Westbrook appeals his conviction and sentence for robbery. We affirm his conviction, but reverse and remand for resentencing.
The trial court erred in sentencing West-brook as a habitual felony offender. Section 775.084(l)(a)l, Florida Statutes (1991), requires the trial court to find a defendant has been convicted of two or more felonies in order to be classified as a habitual felony offender. At bar, the state only admitted into evidence one prior felony. On remand, the trial court is instructed to hear additional evidence of prior felonies prior to classifying Westbrook as a habitual felony offender. King v. State, 580 So. 2d 169 (Fla. 4th DCA 1991) (en banc).
In addition, the trial court’s written sentence failed to conform to the sentence pronounced in open courtv Upon remand, the trial court is instructed to impose sentence in accordance with its oral pronouncement. Sirmons v. State, 405 So. 2d 310 (Fla. 4th DCA 1981); Sandstrom v. State, 390 So. 2d 448 (Fla. 4th DCA 1980), rev. denied, 397 So. 2d 779 (Fla.1981). Moreover, Westbrook’s judgment erroneously lists attempted robbery with a deadly weapon as a first degree felony, when the crime is a second degree felony. Sections 812.13(2)(b) and 777.04(4)(b), Fla.Stat. (1991). Upon remand, the trial court should also correct this error. REVERSED AND REMANDED WITH INSTRUCTIONS.
GLICKSTEIN, C.J., GUNTHER, J., and WALDEN, JAMES H., Senior Judge, concur.
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Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sandstrom v. State, 390 So. 2d 448 (Fla. 4th DCA 1980)
- Bertram King v. State, 580 So. 2d 169 (Fla. 4th DCA 1991)
- Schilling v. Schilling, 405 So. 2d 310 (Fla. 4th DCA 1981)
- Sirmons v. State, 405 So. 2d 310 (Fla. 4th DCA 1981)