JAMES TOMMY PEEK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court, the First District Court of Appeal reviewed a habitual offender sentencing case where the trial court failed to make specific statutory findings. The court held that the failure to make ministerial findings regarding prior convictions was harmless error when unrebutted evidence was introduced, but reversed and remanded for resentencing because the sentence exceeded the statutory maximum and misdemeanor habitual offender enhancements were improper.
The trial court's failure to make specific statutory findings was harmless error when unrebutted evidence of prior convictions was introduced. However, the sentences for the third-degree felony and the two misdemeanors were reversed because the felony sentence exceeded the ten-year statutory maximum and habitual offender enhancement no longer applies to misdemeanors.
[1] A trial court's failure to make specific findings required by the habitual offender statute is subject to harmless error analysis when the state introduces unrebutted evi…
[2] A court may infer that there has been no pardon or set aside of prior convictions when the state introduces unrebutted evidence, such as certified copies.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a court may infer that there has been no pardon or set aside. In such a case, a court's failure to make these ministerial findings is subject to harmless error analysis.”
Establishes that failure to make statutory findings regarding prior convictions constitutes harmless error when unrebutted evidence is presented
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Join FLexlaw to unlock all legal intelligenceAppellant Peek was sentenced as a habitual offender, receiving a fifteen-year sentence for a third-degree felony and habitual offender sentences for t…
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PER CURIAM.
Appellant initially raised three alleged trial court errors, all related to habitual offender sentencing. He contended that the court failed to make the specific findings required by section 775.084, Florida Statutes, that it imposed an excessive habitual offender sentence for a third degree felony, and that it improperly imposed habitual offender sentences for misdemeanors. The state conceded that the fifteen year sentence for the third degree felony must be reduced to ten years, the statutory maximum sentence. It suggested that the written order, which reflects that appellant received habitual offender sentences for the two misdemeanors, contained a “scrivener’s error” which should be corrected to conform to the oral pronouncements at sentencing.
As to the first issue, the record showed that the state had introduced certified copies of the prior convictions and a certificate that appellant had not been pardoned. The state argued that defense counsel’s admission that appellant qualified for habitual offender sentencing obviated the need for specific findings on the statutory factors, and constituted a waiver of appellant's right to appeal a "purely technical error.” On this issue, we were constrained to follow Jones v. State, 606 So. 2d 709 (Fla. 1st DCA 1992), an en banc opinion which required reversal of habitual offender sentences when the trial court failed to make the specific findings required by the habitual offender statute, but we certified the question, see Peek v. State, 610 So. 2d 5 (Fla. 1st DCA 1992).
In State of Florida v. James Tommy Peek, 616 So. 2d 50 (Fla.1993), the supreme court quashed our opinion and remanded for proceedings consistent with State v. Rucker, 613 So. 2d 460, 462 (Fla.1993), in which it held that when the state introduces unrebutted evidence of the defendant’s prior convictions, e.g., certified copies, “a court may infer that there has been no pardon or set aside. In such a case, a court’s failure to make these ministerial findings is subject to harmless error analysis.”
In accordance with the supreme court’s mandate, we find that the trial court’s failure to make the specific findings required by the habitual offender statute was harmless error. However, we REVERSE the sentences for the third degree felony and the two misdemeanors, and REMAND for resentencing, reminding the trial court that section 775.084 no longer applies to misdemeanor offenses, and that the sentence for the third degree felony may not exceed the ten year statutory maximum.
ERVIN, ZEHMER and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- William v. Jones, 606 So. 2d 709 (Fla. 1st DCA 1992)
- Peek v. State, 610 So. 2d 5 (Fla. 1st DCA 1992)
- State v. Peek, 616 So. 2d 50 (Fla. 1993)
- State v. Roberts, 616 So. 2d 50 (Fla. 1993)