GARY BERNARD BREEZE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Gary Bernard Breeze appealed his conviction and sentence for second-degree murder. The appellate court affirmed his conviction but reversed his sentence as an habitual violent felony offender because the predicate conviction used for enhancement was pending on direct appeal and therefore not final at the time of sentencing.
The court affirmed the conviction without discussion. The court reversed the sentence because a conviction pending on direct appeal cannot be used as a predicate offense for habitual violent felony offender enhancement, as it is not final. The trial court may resentence on remand using only convictions that were final as of February 9, 1993.
[1] A conviction pending on direct appeal at the time of sentencing cannot be used as a predicate conviction to qualify a defendant as an habitual violent felony offender.
[2] A conviction must be final at the time of sentencing to serve as a predicate offense for habitual violent felony offender status.
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“Although that conviction was eventually affirmed, it is clear that that conviction could not be used to support a finding that appellant qualified as an habitual violent felony offender because the conviction was not yet final at the time of appellant's sentencing.”
Establishes the core holding that pending convictions cannot support habitual violent felony offender enhancement
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBreeze was indicted for first-degree murder but convicted by jury of second-degree murder. At sentencing, the trial court found he qualified as an hab…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Second-Degree Murder Conviction cases and more on FLexlaw
PER CURIAM.
In this direct criminal appeal, appellant seeks review of both his conviction of second-degree murder and his sentence. He raises two issues: (1) whether the trial court committed reversible error when it overruled a hearsay objection and permitted testimony which it concluded was relevant to depict the victim’s state of mind; and (2) whether the trial court committed reversible error when it sentenced appellant as an habitual violent felony offender, because the predicate conviction relied upon was pending on direct appeal at the time of sentencing. We affirm appellant’s conviction without discussion. However, we are constrained to reverse appellant’s sentence and to remand for resentencing.
Appellant was indicted on the charge of first-degree murder. He was found guilty by a jury of second-degree murder. Following the verdict, the state served a notice of its intent to seek enhancement of appellant’s sentence, pursuant to section 775.084, Florida Statutes (1989), on the ground that appellant was an habitual violent felony offender. After a hearing, the trial court concluded that appellant qualified as an habitual violent felony offender by virtue of a 1992 conviction for attempted sexual battery. Accordingly, the trial court sentenced appellant, as an habitual violent felony offender, to life in prison, subject to a 15-year mandatory minimum term.
At the time of appellant’s sentencing, the 1992 attempted sexual battery conviction was pending on direct appeal before this court. Although that conviction was eventually affirmed, it is clear that that conviction could not be used to support a finding that appellant qualified as an habitual violent felony offender because the conviction was not yet final at the time of appellant’s sentencing. E.g., Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993); Johnson v. State, 613 So. 2d 143 (Fla. 2d DCA 1993); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990); Frazier v. State, 452 So. 2d 1015 (Fla. 5th DCA 1984); Coleman v. State, 281 So. 2d 226 (Fla. 2d DCA 1973). Accordingly, we must reverse appellant’s sentence. On remand, there is nothing to preclude the trial court from again enhancing appellant’s sentence pursuant to section 775.084, Florida Statutes (1989), provided that it finds that appellant qualifies for such treatment. However, the trial court may not rely upon any conviction which had not yet become final as of the date of appellant’s original sentencing — February 9, 1993 — as a predicate offense for that purpose.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
WEBSTER and BENTON, JJ., concur. BOOTH, J., concurs in part and dissents in part with written opinion.
BOOTH, Judge,
concurring in part and dissenting in part:
We are required to reverse the sentence in this case because of this court’s opinion in Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993). However, Baxter does not require that on remand for resentencing the trial court not consider the prior conviction which has since been affirmed on appeal. That position was not urged by the State in Baxter 1 and not considered by this court in that case.
I would, therefore, concur in the majority’s affirmance of the conviction for second-degree murder and in the remand for resentencing under Baxter, but would dissent from the limitation imposed on the trial court prohibiting use of the prior felony conviction as a basis for resentencing as a habitual offender. . In Baxter, the State argued that “affirmance of the disputed conviction after Baxter’s sentence ratified its use to support habitualization.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ezekiel Peterson v. State, 651 So. 2d 781 (Fla. 4th DCA 1995)…il the judgment of the lower court has been affirmed by the appellate court. Joyner v. State, 158 Fla. 806, 30 So. 2d 304, 305 (1947), superseded on other grounds as recognized in State v. Barnes, 595 So. 2d 22 (Fla.1992); see also Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994); Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990); Garrett v. State, 335 So. 2d 876 (Fla. 4th DCA 1976); see also State v. Villa- [*783] fane, 444 So. 2d 71 (Fla. 4th DCA…
-
Wendall Jermaine Hall v. State, 738 So. 2d 374 (Fla. 1st DCA 1999)…battery. He argues that the sentence is illegal and should be reversed because the prior violent offenses on which it is predicated took place six weeks after the sexual battery for which he was convicted in the present case. Citing Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994), he also argues that these offenses cannot serve as a lawful predicate for his sentence as a habitual violent felony offender because the convictions they gave rise to were on appeal at the time the habitual violent felony offend…
-
Kiley v. State, 936 So. 2d 674 (Fla. 4th DCA 2006)…s the relevant time frame for determining the finality of a prior conviction. See Delguidice v. State, 554 So. 2d 35, 35 (Fla. 4th DCA 1990) (holding that the predicate conviction was not final “at the time of sentencing”); see also Breeze v. State, 641 So. 2d 450, 451 (Fla. 1st DCA 1994) (remanding for resen-tencing, but instructing the trial court that it could not use any prior conviction that was not final as of the date of the original sentencing); Martin, 592 So. 2d at 1221. The motion to correct illeg…
Authorities Cited
- Cleve Carson and Laura Carson v. Iacona, 281 So. 2d 226 (Fla. 1st DCA 1973)
- Rubin Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993)
- Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990)
- Frazier v. State, 452 So. 2d 1015 (Fla. 5th DCA 1984)
- Nelson v. State, 613 So. 2d 143 (Fla. 2d DCA 1993)