JOSE LUIS MARTINEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1993-11-02
No. 92-1540
Before JORGENSON, LEVY and GODERICH, JJ.
625 So. 2d 1306 Florida District Court of Appeal, Third District (1993) Caution
Cited by 6 cases
Topics
Habitual Violent Felony Offender Aggravated Battery Sentencing Guidelines

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Opinion of the Court
GODERICH, Judge.

GODERICH, Judge.

The State concedes that the defendant’s sentence as a habitual violent felony offender on the basis of a prior aggravated battery must be reversed. The amendment to the habitual violent felony offender statute adding aggravated battery as one of the felonies that would support habitualization was not in effect on the date that the defendant committed the offense for which he was being sentenced. See State v. Johnson, 616 So. 2d 1 (Fla.1993).

The defendant contends that upon re-sentencing he must be sentenced within the guidelines. We agree. At the original sentencing hearing, the defendant was not sentenced as a habitual felony offender, even though the State requested the trial court to do so. Then, upon remand after a successful appeal, the trial court sentenced the defendant as a habitual violent felony offender. The trial court’s initial decision not to sentence the defendant as a habitual offender precludes such a sentence on remand. Grimes v. State, 616 So. 2d 996, 998 (Fla. 1st DCA1992), review dismissed, 617 So. 2d 319 (Fla.1993). Accordingly, we reverse and remand for resentencing within the guidelines.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • DE LA Cosa v. State, 784 So. 2d 452 (Fla. 3d DCA 2000)
    …decision does not affect any conviction other than the judgment and sentence in count one. Moreover, the trial court could not circumvent this proscription by sentencing De La Cosa as an habitual offender. This court’s decision in Martinez v. State, 625 So. 2d 1306, 1307 (Fla. 3d DCA 1993), clearly states that a “trial court’s initial decision not to sentence the defendant as a habitual offender precludes such a sentence on remand.” See Cerkella v. State, 687 So. 2d 367, 368 n. * (Fla. 3d DCA 1997)(Cope, J., c…
  • Duhart v. State, 930 So. 2d 654 (Fla. 3d DCA 2006)
    …esignated the defendant as a habitual offender. It is this written order that is now the subject matter of this appeal. The appellant claims that his resentence as a habitual felony offender was improper based upon our opinion in Martinez v. State, 625 So. 2d 1306 (Fla. 3d DCA 1993). We disagree. The facts in this case are clearly distinguishable from those in Martinez. In Martinez, the trial court, at the initial sentencing hearing, specifically declined to sentence the defendant as a habitual felony offend…
  • Santiago v. State, 147 So. 3d 1057 (Fla. 3d DCA 2014)
    …ivera v. State, 862 So. 2d 55, 56 (Fla. 2d DCA 2003) (stating amendment of sentence to impose sex offender probation in addition to previously pronounced drug probation constituted violation of defendant’s double jeopardy rights); Martinez v. State, 625 So. 2d 1306, 1307 (Fla. 3d DCA 1993) (determining trial court’s initial decision not to sentence the defendant as a habitual offender precluded such a sentence on remand) (citing Grimes v. State, 616 So. 2d 996, 998 (Fla. 1st DCA 1992)).4 Given the trial court…

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