CHARLES A. HIGHTOWER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hightower appeals his sentencing as a habitual violent felony offender under Florida law. The court reverses because the trial court improperly counted probation as a 'commitment' for purposes of the five-year requirement, and certifies the issue to the Florida Supreme Court.
The court reverses the habitual violent felony offender sentence because Hightower's present felony did not occur within five years of his 1984 conviction, and probation should not be included within the meaning of 'other commitment' under the statute.
[1] A defendant may be sentenced as a habitual violent felony offender only if the present felony was committed within five years of release from a prior enumerated felony co…
[2] Probation is not included within the meaning of "other commitment" for the purposes of habitual violent felony offender sentencing under section 775.084(1)(b)2, Florida S…
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Join FLexlaw to unlock all legal intelligence“A court may sentence a defendant as a habitual violent felony offender if the defendant previously has been convicted of a felony enumerated in section 775.084(l)(b)l, Florida Statutes (1989) and the defendant committed the present felony within five years of the date of the conviction of the last prior enumerated felony or within five years of the defendant's release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony.”
Establishes the statutory requirement for habitual violent felony offender sentencing, which is the key issue on appeal.
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Join FLexlaw to unlock all legal intelligenceIn 1984, Hightower pleaded guilty to grand theft, armed burglary, and commission of a felony with a firearm, and was placed on five years' probation. …
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Upon consideration of the motion for rehearing filed on November 3, 1993, by the Public Defender, Tenth Judicial Circuit, Bar-tow, it is ORDERED that the motion for rehearing is granted and the prior opinion filed October 27, 1993, is withdrawn. The attached opinion is substituted therefor. PARKER, Judge.
Charles A. Hightower appeals the final judgment that adjudicated him guilty of burglary and grand theft. Hightower argues on appeal that the trial court erred by sentencing him as a habitual violent felony offender pursuant to section 775.084, Florida Statutes (1989). ' We reverse because the trial court erred in finding that Hightower’s present felony occurred within five years of his release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony.
In 1984 Hightower entered a guilty plea to grand theft, armed burglary, and commission of a felony with a firearm. The court adjudicated him guilty and placed him on five years’ probation. In 1988 the court revoked Hightower’s probation, upon the commission of a new offense, and again placed him on five years’ probation to be served concurrently with the sentences imposed in two other cases. Hightower pleaded guilty in these two other cases to burglary of a structure and grand theft. Hightower was on probation from all three of these cases when he committed the present offenses.
A court may sentence a defendant as a habitual violent felony offender if the defendant previously has been convicted of a felony enumerated in section 775.084(l)(b)l, Florida Statutes (1989) and the defendant committed the present felony within five years of the date of the conviction of the last prior enumerated felony or within five years of the defendant’s release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony. § 775.084(l)(b), Fla.Stat. (1989). We must determine whether Hightower’s placement on probation is included within the meaning of “other commitment” under the statute.
The Fourth District has answered this query and held that the phrase “other commitment” did not include probation. Allen v. State, 487 So. 2d 410 (Fla. 4th DCA 1986). Recently, in Bacon v. State, 620 So. 2d 1084, 1086 (Fla. 1st DCA 1993), the First District declined to interpret “the defendant’s release ... from a prison sentence or other commitment” to include community control for the purposes of habitual offender sentencing. Accordingly, if community control cannot be included in the definition of “other commitment,” then probation, which is a less restrictive form of control, also should not be included. Because Hightower did not commit the present felony within five years of his 1984 conviction, we reverse the habitual violent felony offender sentence and remand for resentencing within the guidelines. In addition, we certify to the Florida Supreme Court the following question of great public importance:
DOES THE TERM “OTHER COMMITMENT” IN THE PHRASE “FROM A PRISON SENTENCE OR OTHER COM MITMENT” IN SECTION 775.084(l)(b)2, FLORIDA STATUTES (1989), INCLUDE PROBATION?
DANAHY, A.C.J., and ALTENBERND, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gavlick v. State, 740 So. 2d 1212 (Fla. 2d DCA 1999)…being sentenced must have been committed within five years of his release from prison or other commitment and not his release from probation, community control or parole. See Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996); Hightower v. State, 630 So. 2d 1220 (Fla. 2d DCA 1994); Bacon v. State, 620 So. 2d 1084 (Fla. 1st DCA 1993); Allen v. State, 487 So. 2d 410 (Fla. 4th DCA 1986). The State’s alternative theory that Appellant was qualified for habitual felony offender sentencing is equally unavailable…
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Johnson v. State, 765 So. 2d 914 (Fla. 2d DCA 2000)…ve consistently held that release from community control does not qualify as release from “other commitment.” See Gavlick v. State, 740 So. 2d 1212 (Fla. 2d DCA 1999) (citing Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996)); Hightower v. State, 630 So. 2d 1220 (Fla. 2d DCA 1994); Bacon v. State, 620 So. 2d 1084 (Fla. 1st DCA 1993); Allen v. State, 487 So. 2d 410 (Fla. 4th DCA 1986). The First District’s analysis in Bacon is particularly instructive. There, the court examined the definitions .of “communit…
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Williams v. State, 994 So. 2d 337 (Fla. 3d DCA 2008)…mitments” contemplated by section 775.084, and therefore, could not be considered when computing the time between Williams’ release from commitment for the sexual battery conviction and the commission of the instant felonies. See Hightower v. State, 630 So. 2d 1220, 1221 (Fla. 2d DCA 1994) (holding that for sentencing as a violent habitual felony offender, “other commitment” did not include probation); Bacon v. State, 620 So. 2d 1084, 1086 (Fla. 1st DCA 1993) (concluding that while community control is more re…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kings Point Cmty. Ass'n, Inc. v. Dravitch, 487 So. 2d 410 (Fla. 4th DCA 1986)
- Allen v. State, 487 So. 2d 410 (Fla. 4th DCA 1986)
- Bacon v. State, 620 So. 2d 1084 (Fla. 1st DCA 1993)