EVELYN GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Evelyn Green appealed her felony sentences in three cases after pleading guilty. The court reversed her sentence and remanded for resentencing because the trial court failed to make the specific findings required under Florida's habitual offender statute when sentencing Green, though affirmed the conviction on other issues.
The court reversed Green's sentence because the trial court failed to make the specific findings required by § 775.084(3)(d), Fla. Stat. (1991), and remanded for resentencing. Without the conviction documents available, the judge could not determine whether the predicate convictions qualified or were committed within the required five-year period, making the specific findings impossible and rendering harmless error analysis inapplicable.
[1] A trial court must make specific findings required under the habitual offender statute to sentence a defendant as a habitual offender.
[2] A trial court's failure to make specific findings required by the habitual offender statute is subject to harmless error analysis.
Previewing 2 of 4 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“the court stated "I will make a finding, based on what's in the record and the certified convictions, that she does qualify to be treated as a habitual felony offender under the statute, and I will treat her as a habitual felony offender."”
Demonstrates the trial court's general finding without specific statutory findings required by § 775.084(3)(d)
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Join FLexlaw to unlock all legal intelligenceGreen pleaded guilty in three separate felony cases and was sentenced on December 10, 1992, as a continuation of a prior sentencing hearing. At senten…
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PER CURIAM.
Evelyn Green pled guilty in three separate felony cases. She has raised four issues on appeal, only one of which has merit. We reverse her sentence and remand for resentencing because the trial court failed to make the specific findings required under the habitual offender statute, section 775.084, Florida Statutes (1991). We affirm on all other issues.
The trial court sentenced Green at a hearing on December 10, 1992. Apparently, this was a continuation of a prior sentencing hearing held in either October or November of that year. At the December hearing, the court asked the state if it had submitted certified copies of the predicate convictions for habitual offender sentencing. The prosecutor replied that she had done so at the prior hearing. The clerk then said “Judge, I admitted them as evidence. They are in the vault downstairs.” In adjudicating Green a habitual offender, the court stated “I will make a finding, based on what’s in the record and the certified convictions, that she does qualify to be treated as a habitual felony offender under the statute, and I will treat her as a habitual felony offender.”
Without copies of the convictions in front of her, the trial judge could not determine whether the predicate convictions were felonies or other qualified offenses that had been committed within five years of the offenses for which she was sentencing Green. § 775.084(l)(a), Fla.Stat. (1991). She did not and could not, therefore, make the specific findings the statute requires. § 775.084(3)(d), Fla.Stat. (1991). Moreover, because copies of the convictions were not included in this record, we are unable to discern whether factors supporting habituali-zation existed at the time of sentencing. Livernois v. State, 625 So. 2d 973 (Fla. 2d DCA 1993). As such, we cannot ascertain whether the trial court’s failure to make specific findings was harmless error. Herrington v. State, 643 So. 2d 1078 (Fla.1994) (trial court’s failure to make the findings required under section 775.084(l)(a) subject to harmless error analysis).
Accordingly, we reverse Green’s sentence and remand for resentencing. Upon remand, if the lower court makes the requisite findings, it may again sentence Green as a habitual offender. Livernois; see also Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992).
Affirmed in part, reversed in part and remanded.
RYDER, A.C.J., and PATTERSON and FULMER, JJ., concur.
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Tory A. Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001)…0) (state not obligated to prove prior convictions set aside or pardoned; rather, such are affirmative defenses). Given the objection made by the appellant, the state should have provided copies of appellant’s qualifying convictions. Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994) (“because copies of the convictions were not included in this record, we are unable to discern whether factors supporting habitualization existed”); Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999); c.f Torres v. State, 751 S…
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Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999)…76.08, Florida Statutes (1995). Although the State mentioned a prior conviction for escape during the sentencing hearing, without a copy' of that conviction, the trial court could not determine whether it was a qualified offense. See Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994). Regardless, section 775.084(l)(c) requires that the defendant have at least three prior convictions for the specified offenses. We reject the State’s argument that Landreth waived this issue because he did not raise it in the t…
Authorities Cited
- Herrington v. State, 643 So. 2d 1078 (Fla. 1994)
- Queen Tucker Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992)
- State v. Bradford Sutton, 625 So. 2d 973 (Fla. 2d DCA 1993)
- Livernois v. State, 625 So. 2d 973 (Fla. 2d DCA 1993)