DEXTER ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anderson was convicted of selling a substance in lieu of a controlled substance. The appellate court affirmed his conviction but reversed his sentence because the trial court improperly used a conviction that was still on appeal as a predicate for classifying him as a habitual felony offender, and also reversed the trial court's unauthorized award of appellate costs.
The court affirmed the conviction but reversed the sentence because a conviction under appeal is non-final and cannot serve as a predicate for habitual felony offender status. The court also reversed the trial court's unauthorized award of appellate costs, holding that only the appellate court may authorize such an award.
[1] A conviction under appeal is not a final conviction and cannot serve as a predicate for habitual offender status.
[2] A trial court cannot award appellate costs without permission from the appellate court.
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Join FLexlaw to unlock all legal intelligence“A conviction under appeal is non-final and cannot be a predicate to a finding of habitual offender status.”
Establishes the core legal principle that predicate convictions must be final, not pending appeal.
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Join FLexlaw to unlock all legal intelligenceAnderson was convicted of sale of a substance in lieu of a controlled substance under Florida Statutes section 817.563(1). At sentencing, the trial co…
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BROWN, LUCY, Associate Judge.
We affirm appellant’s conviction for sale of a substance in lieu of a controlled substance, in violation of section 817.563(1), Florida Statutes (1991), and reverse his sentence which was predicated on the trial court’s erroneous classification of appellant as a habitual felony offender. The judgment assessing costs is reversed to the extent that it assessed costs for this appeal.
Appellant’s claims of error by the trial court relative to his conviction are without merit. In sentencing the appellant, however, the trial court improperly classified him as a habitual felony offender pursuant to section 775.084(l)(a)(l), Florida Statutes (1991), which provides for enhanced penalties where the offender “has previously been convicted of any combination of two or more felonies in this state.... ”
The second felony conviction relied upon by the court as a basis for enhancing appellant’s sentence was on appeal at the time of sentencing. A conviction under appeal is non-final and cannot be a predicate to a finding of habitual offender status. Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990); State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984). Accordingly, we reverse appellant’s sentence and remand for resentencing.
Before appellant’s sentencing hearing, the trial court entered a judgment for costs which included the following provision:
If the defendant appeals the conviction in this case, upon receipt of a Mandate from the Appellate Court affirming such conviction, this Court shall enter a further judgment against said defendant for the costs incurred in preparing the record on appeal herein and the filing fee for filing said appeal with the Appellate Court.
Without permission from the appellate court, the trial court cannot award appellate costs. These costs may be taxed in favor of the prevailing party, pursuant to Florida Rule of Appellate Procedure 9.400(a), which “explicitly provides for taxation of costs by the lower tribunal on motions heard within 30 days after issuance of the mandate — but not before.” Boyer v. Boyer, 588 So. 2d 615, 617 (Fla. 5th DCA 1991).
We, therefore, reverse the trial court’s anticipatory and unauthorized award of appellate costs.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
GLICKSTEIN and FARMER, JJ., concur.
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Watson v. State, 690 So. 2d 730 (Fla. 4th DCA 1997)…ncement). Finally, we reverse the prospective award of appellate costs as it was improper for the trial court to make such an anticipatory and unauthorized award. In the Interest of L.B., 651 So. 2d 1274, 1275 (Fla. 4th DCA 1995); Anderson v. State, 632 So. 2d 132, 133 (Fla. 4th DCA 1994). REVERSED AND REMANDED. GUNTHER, C.J., and FARMER and KLEIN, JJ., concur.…
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Vella v. Vella, 691 So. 2d 612 (Fla. 4th DCA 1997)…is vested in the trial court, not this court, upon motion served within thirty days after issuance of the mandate. Thus, we deny the motion without prejudice to refile same in the trial court. Unfortunately, there is language in Anderson v. State, 632 So. 2d 132, 133 (Fla. 4th DCA 1994), which must be addressed although we properly reversed the trial court’s premature entry of a judgment for appellate costs prior to the appeal. We inappropriately said: Without permission from the appellate court, the trial…
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Bain v. State, 650 So. 2d 83 (Fla. 4th DCA 1995)…ortunity to be heard and offer objections to the amount of public defender fees and costs assessed against him. § 27.56(7), Fla.Stat. (1993). Finally, the trial court may not award appellate costs before the issuance of a mandate. Anderson v. State, 632 So. 2d 132 (Fla. 4th DCA 1994). HERSEY, GLICKSTEIN and KLEIN, JJ., concur. . The standard jury instruction for burglary defines structure as "any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of groun…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991)
- State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984)
- Police Pension Fund v. Cunningham, 554 So. 2d 35 (Fla. 4th DCA 1989)
- Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990)