GEORGE ERIC SHAW, A/K/A ERIC SIMMS, A/K/A JOSE C. LEMUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that imposing a habitual offender sentence only for the probationary portion of a sentence is improper.
[1] A trial court may not impose habitual offender status for only the probationary portion of a sentence.
[2] A "hybrid" habitual offender sentence, where habitual offender status is applied only to probation, is improper.
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Join FLexlaw to unlock all legal intelligenceAppellant was originally sentenced to incarceration followed by probation, with habitual offender status applied only to the probation. After violatin…
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PER CURIAM.
The appellant, George Eric Shaw, challenges the sentences imposed upon him after the trial court revoked his probation in case number 90-12067 and case number 90-12066. We reverse.
In case number 90-12067, the state charged appellant with possession of cocaine and possession of drug paraphernalia. In case number 90-12066, appellant was charged with robbery. He pled guilty and was sentenced to incarceration followed by probation. The trial court imposed habitual offender status for only the probationary portion of the sentences. Appellant did not appeal those sentences. After serving the incarcerative portion of these sentences, appellant was charged with and found guilty of violating his probation in these two cases. The trial court revoked appellant’s probation and sentenced him in case number 90-12067 to ten years as a habitual offender, and in case number 90-12066 to thirty years in prison as a habitual offender. The sentences were to run concurrently. Appellant filed a timely notice of appeal from imposition of these sentences.
The appellant raises several issues concerning the sentences imposed upon him. We find merit only in the contention that the trial court erred by imposing a “hybrid” habitual offender sentence. When appellant was originally sentenced in cases 90-12067 and 90-12066, the trial court sentenced appellant to incarceration without habitual offender status followed by probation with habitual offender status. This type of sentencing scheme is improper. Davis v. State, 623 So. 2d 547 (Fla. 2d DCA 1993); Branton v. State, 620 So. 2d 1073 (Fla. 2d DCA 1993).
We reverse the habitual offender sentences in cases 90-12067 and 90-12066. Since appellant has already served the incarceration portion of these improper sentences, upon remand he must be resenteficed within the guidelines. Davis. Upon resentencing, the trial court may of course consider the one cell bump for violations of probation. Davis.
Reversed and remanded for resentencing.
SCHOONOVER, A.C.J., and ALTENBERND and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dunham v. State, 683 So. 2d 507 (Fla. 4th DCA 1996)…e it was a habitual offender sentence, by agreement, a separate order was entered classifying him as a habitual offender [*509] and reserving the right to sentence him as such should he violate probation. We acknowledge conflict with Shaw v. State, 637 So. 2d 254 (Fla. 2d DCA), rev. denied, 648 So. 2d 724 (Fla.1994). In Shaw, the defendant was also given a split sentence incident to a plea and, as here, subsequently violated probation and was sentenced upon revocation as a habitual offender. In Shaw, the tri…
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Guion v. State, 642 So. 2d 1148 (Fla. 2d DCA 1994)…to run concurrently. Guión filed a timely notice of appeal from the imposition of these sentences. Incarceration without habitual offender status followed by probation with habitual offender status is an improper “hybrid” sentence. Shaw v. State, 637 So. 2d 254 (Fla. 2d DCA 1994); Moorer v. State, 614 So. 2d 643 (Fla. 2d DCA 1993); Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992). Accordingly, we reverse the habitual offender prison sentences. Because Guión has already served the incarcerative portion o…
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Oney J. Stephenson v. State, 737 So. 2d 1154 (Fla. 5th DCA 1999)…rt revisits Tripp and Cook. However, in the case of violation of probation and multiple violations, the trial judge has discretion to “bump up” the sentence for the second crime.3 See Williams v. State, 594 So. 2d 273, 274 (Fla.1992); Shaw v. State, 637 So. 2d 254 (Fla. 2d DCA 1994); Attach v. State, 634 So. 2d 254 (Fla. 2d DCA 1994). Sentence VACATED; REMANDED for resentencing. GRIFFIN, C.J., and ANTOON, J., concur. . § 800.04(4), Fla. Stat. (1993). . § 800.04(1), Fla. Stat. (1993). . Fla. R.Crim. P. 3.…
Authorities Cited
- Davis v. State, 623 So. 2d 547 (Fla. 2d DCA 1993)
- Branton v. State, 620 So. 2d 1073 (Fla. 2d DCA 1993)