CARL PERCY LIVERNOIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carl Livernois was convicted of armed burglary, armed robbery, and kidnapping and sentenced as a habitual violent felony offender to consecutive life sentences with mandatory minimum terms. The appellate court affirmed the convictions but reversed the sentencing, finding that the trial court failed to make specific statutory findings required for habitualization and that concurrent rather than consecutive mandatory minimums should apply.
The trial court erred in sentencing Livernois as a habitual violent felony offender because it failed to make the specific findings required by Florida Statutes § 775.084(3)(d). Additionally, because all offenses occurred during a single criminal episode, any minimum mandatory terms must be ordered to be served concurrently rather than consecutively.
[1] A court must make specific findings required by statute before sentencing a defendant as a habitual violent felony offender.
[2] A general statement that documentation supports a finding of habitual violent felony offender status does not satisfy statutory requirements for specific findings.
Previewing 2 of 3 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“Section 775.084(3)(d), Florida Statutes (1989), requires the court to find by a preponderance of the evidence the existence of each factor necessary to impose a habitual felony offender sentence pursuant to section 775.084(l)(a) or a habitual violent felony offender sentence pursuant to section 775.-084(l)(b).”
Establishes the statutory requirement for specific findings before imposing habitual violent felony offender sentences
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Join FLexlaw to unlock all legal intelligenceLivernois was found guilty by jury of armed burglary, armed robbery, and kidnapping. He was adjudicated guilty and sentenced as a habitual violent fel…
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PER CURIAM.
The appellant, Carl Percy Livernois, challenges the judgments and sentences imposed upon him after he was found guilty, as charged, of armed burglary, armed robbery, and kidnapping. The appellant has failed to demonstrate reversible error in connection with any issues he has raised concerning his convictions. We, accordingly, affirm those convictions without further discussion. We agree, however, with the appellant’s contention that the court erred in sentencing him.
The appellant, after being found guilty by a jury, was adjudicated guilty and sentenced as a habitual violent felony offender to three consecutive terms of life imprisonment for the above mentioned offenses. Three consecutive minimum mandatory terms of fifteen years each were also imposed upon the appellant.
The appellant contends, and the state concedes, that the trial court erred in sentencing him as a habitual violent felony offender and by imposing consecutive minimum mandatory sentences. We agree.
Section 775.084(3)(d), Florida Statutes (1989), requires the court to find by a preponderance of the evidence the existence of each factor necessary to impose a habitual felony offender sentence pursuant to section 775.084(l)(a) or a habitual violent felony offender sentence pursuant to section 775.-084(l)(b). In this ease, the court failed to make the specific findings required by section 775.084(3)(d) before sentencing the appellant pursuant to section 775.084(1)(b). See Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992); Rowland v. State, 583 So. 2d 813 (Fla. 2d DCA 1991). The court simply stated that “the documentation that has been filed with the Court supports a finding, and the Court so finds that [appellant] is a habitual violent felony offender.” This statement does not satisfy the statutory requirement for specific findings. See Harper v. State, 605 So. 2d 994 (Fla. 5th DCA 1992).
We are also unable to discern from the record presented to us whether the factors required to support habitualization existed at the time of sentencing. § 775.084(l)(b); Moore; Rowland. See McDonald v. State, 622 So. 2d 70 (Fla. 4th DCA 1993).
Upon remand, if the court makes the requisite findings it may sentence the appellant as a habitual felony offender or a habitual violent felony offender. See Moore. We remind the court, however, that since all of the offenses occurred during a single criminal episode, any minimum mandatory terms contained in the sentences must be ordered to be served concurrently. See Daniels v. State, 595 So. 2d 952 (Fla.1992); Brown v. State, 599 So. 2d 132 (Fla. 2d DCA 1992).
Affirmed in part; reversed in part; and remanded with instructions.
CAMPBELL, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
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Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)…ender. After the state presented evidence of appellant’s prior convictions, the trial court merely stated that appellant qualified as a habitual offender. This does not satisfy the statutory requirement for specific findings. See Livernois v. State, 625 So. 2d 973 (Fla. 2d DCA 1993). The trial court also found that the intent of the habitual offender statute is that probation and community control are to be treated synonymously. In Overstreet v. State, 629 So. 2d 125 (Fla.1993), the supreme court stated that…
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Reddick v. State, 636 So. 2d 176 (Fla. 2d DCA 1994)…the trial court shall make specific findings that the preponderance of the evidence establishes the existence of each factor necessary for the imposition of a habitual felony offender. § 775.084(3)(d), Fla.Stat. (1991). See also Livernois v. State, 625 So. 2d 973 (Fla. 2d DCA 1993). Reversed and remanded. CAMPBELL, A.C.J., and LAZZARA, J., concur. . At the time of the armed robbery, Reddick was on probation for two charges of burglary, two charges of grand theft, and one charge of petit theft.…
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Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994)…te requires. § 775.084(3)(d), Fla.Stat. (1991). Moreover, because copies of the convictions were not included in this record, we are unable to discern whether factors supporting habituali-zation existed at the time of sentencing. Livernois v. State, 625 So. 2d 973 (Fla. 2d DCA 1993). As such, we cannot ascertain whether the trial court’s failure to make specific findings was harmless error. Herrington v. State, 643 So. 2d 1078 (Fla.1994) (trial court’s failure to make the findings required under section 775.0…
Authorities Cited
- Berlie Daniels, Jr. v. State, 595 So. 2d 952 (Fla. 1992)
- Carlton J. Brown v. State, 599 So. 2d 132 (Fla. 2d DCA 1992)
- Harper v. State, 605 So. 2d 994 (Fla. 5th DCA 1992)
- Queen Tucker Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992)
- Rowland v. State, 583 So. 2d 813 (Fla. 2d DCA 1991)
- Maynard v. State, 583 So. 2d 813 (Fla. 5th DCA 1991)
- McDONALD v. State, 622 So. 2d 70 (Fla. 4th DCA 1993)