JAMES LEE BROCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while convictions are affirmed, habitual violent felony offender sentences must be reversed and remanded for resentencing due to the unconstitutional window period of the habitual offender statute.
[1] A defendant must be resentenced when their habitual violent felony offender status is based on predicate offenses that were unconstitutionally added to the statute during…
[2] Resentencing for habitual violent felony offender status is required only when a defendant is affected by amendments to the statute that were deemed unconstitutional.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of attempted murder, robbery, and attempted murder of a law enforcement officer. The trial court imposed habitual violent felo…
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PER CURIAM.
James Lee Brock challenges his judgments and sentences for attempted murder in the first-degree (count one), attempted robbery with a firearm (count two), unarmed robbery (counts three and four), and attempted murder of a law enforcement officer (count five). We conclude that the evidence was more than sufficient to sustain the jury’s verdicts of guilt and affirm his .convictions. We determine, however, that Brock’s habitual violent felony offender sentences imposed in counts one through four must be reversed and those counts remanded for resentencing.1
Brock committed these offenses on February 4, 1991, which was during the “window period” when the habitual offender statute was deemed to be unconstitutional by the Florida Supreme Court in State v. Johnson, 616 So. 2d 1 (Fla.1993). Under Johnson, however, “[r]esentencing is required only when a defendant is affected by the amendments to section 775.084, Florida Statutes (1991) contained in chapter 89-280, Laws of Florida.” Goggins v. State, 623 So. 2d 590 (Fla. 2d DCA 1993).
In this case, the trial court used Brock’s prior convictions for grand theft and aggravated battery as the predicate offenses to support the imposition of habitual violent felony offender sentences. Thus, “[h]is classification as a violent felony offender [was] based on the unconstitutional amendment’s addition of the offense of aggravated battery to those prior offenses which qualify a defendant for violent offender status.” Goggins, 623 So. 2d at 591-592. Accordingly, resentencing is required. On remand, however, the state shall have the opportunity to establish that Brock otherwise meets the requirements of the statute. Foster v. State, 624 So. 2d 386 (Fla. 2d DCA 1993).
Affirmed in part, reversed in part, and remanded for resentencing.
FRANK, C.J., and PARKER and LAZZARA, JJ., concur. . As to count five, the trial court was correct in sentencing Brock to life in prison with the requirement that he serve no less than twenty-five years before becoming eligible for parole. §§ 784.07(3); 775.0825, Fla.Stat. (1991).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rose v. State, 705 So. 2d 958 (Fla. 2d DCA 1998)…correctly concluded that relief is afforded under Johnson only to those habitual offenders whose sentences were imposed pursuant to section 775.084(1)(b)1, Florida Statutes (1989), pertaining to habitual violent felony offenders. See Brock v. State, 645 So. 2d 1022 (Fla. 2d DCA 1994); Foster v. State, 624 So. 2d 386 (Fla. 2d DCA 1993). [*959] The transcript of the sentencing proceeding appended to the order under review, as well as the judgment and sentencing documents appended to the order which was the subje…
Authorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Goggins v. State, 623 So. 2d 590 (Fla. 2d DCA 1993)
- B.V. v. State, 624 So. 2d 386 (Fla. 2d DCA 1993)
- Foster v. State, 624 So. 2d 386 (Fla. 2d DCA 1993)