ROBERT LEE ALLEN, JR. APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed habitual violent felony offender sentencing because the prior offense occurred while appellant was on community control, not probation, and § 775.084(2) requires probation status under plain language construction.
A prior offense cannot be used as a predicate for habitual violent felony offender sentencing under § 775.084(2) when it occurred during community control rather than probation.
[1] Under § 775.084(2), a prior offense qualifies as a predicate for habitual violent felony offender sentencing only when committed while on probation, not while on communit…
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Join FLexlaw to unlock all legal intelligenceAllen was on community control for attempted sexual battery with withheld adjudication when he was charged with armed robbery and uttering a forged in…
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PER CURIAM.
Robert Lee Allen, Jr. appeals an order of the trial court sentencing him as a habitual violent felony offender on the basis of a single predicate offense. § 775.084, Fla.Stat. (1993). Appellant was on community control for one count of attempted sexual battery where adjudication was withheld when he was charged with armed robbery and uttering a forged instrument. Appellant argues that since he was not on probation, as specified in subsection 775.084(2), the prior offense should not be considered for purposes of habitualization.
Our supreme court has recently held that penal statutes must be strictly construed and that the plain language of subsection 775.084(2) includes only those offenses occurring while on probation. Overstreet v. State, 629 So. 2d 125, 126 (Fla.1993). We follow the lead of the Second District Court of Appeal in holding that under Overstreet the trial court should not have considered appellant’s prior conviction since he was on community control and not probation when he committed the present offenses. Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995).
Accordingly, we REVERSE the trial court’s sentence under section 775.084 and REMAND for resentencing under section 775.082.
ERVIN and BENTON, JJ., concur. MINER, J., dissents without opinion.
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Citator
Cited By
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MAY v. State, 713 So. 2d 1087 (Fla. 2d DCA 1998)…ally references “probation” and a “probationary period,” it does not apply to a defendant serving community control. See Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995); see also Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995); Allen v. State, 654 So. 2d 1027 (Fla. 1st DCA 1995). Consequently, the February 1994 disposition of case number 93-14209, in which the court withheld adjudication and placed May on community control, cannot be treated as a prior conviction under section 775.084. For habitual offen…
Authorities Cited
- Overstreet v. State, 629 So. 2d 125 (Fla. 1993)
- Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)