THOMAS WATERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant could not elect to be sentenced under the 1994 guidelines and could be sentenced as a habitual felony offender despite prior convictions occurring on the same day.
[1] A defendant cannot affirmatively elect to be sentenced under amended sentencing guidelines if the offenses were committed before the effective date of the amendments.
[2] The exception provided in subsection (3) of the amended habitual offender statute does not apply to offenses committed before the effective date of that exception.
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Join FLexlaw to unlock all legal intelligenceAppellant sought post-conviction relief, arguing he should have been sentenced under the 1994 guidelines and could not be an habitual felony offender …
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PER CURIAM.
In this appeal from the trial court’s denial of his motion for post-conviction relief, appellant incorrectly asserted that because he was sentenced after January 1, 1994, he could have affirmatively elected to be sentenced pursuant to the 1994 sentencing guidelines. Appellant also incorrectly asserted that he could not have been sentenced as an habitual felony offender under amended section 775.084, Florida Statutes (1993), because all of his prior convictions were entered on the same day and thus counted as one conviction.
In this case, the crimes for which the challenged habitual offender sentencing was imposed were two violations of section 893.13, Florida Statutes. In addition, the predicate prior convictions offered in support of habitual offender sentencing involved violations of section 893.13, Florida Statutes. However, the instant offenses were committed on March 12, 1993, and April 1, 1993, before the effective date of the statutory amendments, thus the amendments do not apply. See Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995). Consequently, appellant does not qualify for the section 893.13 exception provided in subsection (3) of the amended habit- nal offender statute, as that exception was not in effect when he committed the offenses for which the habitual offender sentences were imposed.
By the same token, prior to the effective date of section 775.084(5), Florida Statutes, and during the time period relevant to this case, the absence of sequential convictions did not preclude habitual offender classification and sentencing. State v. Tito, 616 So. 2d 39, 40 (Fla.1993); State n Barnes, 595 So. 2d 22 (Fla.1992); Mitchell v. State, 596 So. 2d 1275, 1276 (Fla. 1st DCA 1992). Since appellant committed the crimes for which habitual offender sentencing was imposed before the effective date of the amended statute, his reliance on the statutory amendments is unavailing.
Accordingly, we affirm the trial court’s order denying post-conviction relief.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur.
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Garret Edwin Brown v. State, 664 So. 2d 311 (Fla. 1st DCA 1995)…pursuant to rule 3.850. As to the third issue, in 1991, when the instant offenses were committed, nonse-quential convictions could be used as a basis for habitual offender sentencing, see State v. Barnes, 595 So. 2d 22 (Fla.1992), Waters v. State, 657 So. 2d 39 (Fla. 1st DCA 1995), Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995). Affirmed in part, reversed in part and remanded with directions. BOOTH, JOANOS and BENTON, JJ., concur.…
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Antoine L. McBRIDE v. State, 665 So. 2d 329 (Fla. 5th DCA 1995)…87). . In so ruling, we are mindful that the legislature amended section 775.084 in 1993 adding the requirement of including only sequential prior convictions for purposes of determining habitual-ization. However, as pointed out in Waters v. State, 657 So. 2d 39 (Fla. 1st DCA 1995), this amendment must be applied prospectively. The offenses for which the defendant was sentenced in this case were committed prior to June 17, 1995, the amendment’s effective date.…
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Crosby v. State, 670 So. 2d 194 (Fla. 5th DCA 1996)…PER CURIAM. AFFIRMED. Waters v. State, 657 So. 2d 39 (Fla. 1st DCA 1995). W. SHARP, GOSHORN and GRIFFIN, JJ., concur.…
Authorities Cited
- State v. Barnes, 595 So. 2d 22 (Fla. 1992)
- State v. Tito, 616 So. 2d 39 (Fla. 1993)
- Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995)
- Mitchell v. State, 596 So. 2d 1275 (Fla. 1st DCA 1992)