EDGAR EUGENE STEPHENSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephenson appealed his habitual violent felony offender (HVFO) designation and sentences following conviction of two armed robberies and attempted armed robbery. The appellate court reversed, holding that the state failed to prove a critical requirement: that the charged offenses were committed within five years of Stephenson's release from prison, not merely release from probation or parole.
The court held that the state incorrectly interpreted the statute by relying on Stephenson's parole status rather than his release from prison. The statute requires proof of release from prison, not probation or parole. Because the state never proved when Stephenson was released from his prison sentence, the habitual violent felony offender designation cannot stand.
[1] A defendant may be sentenced as a habitual violent felony offender only if the current felony was committed within five years of release from prison, not from parole or p…
[2] The state must prove the date of a defendant's release from prison to establish eligibility for habitual violent felony offender sentencing.
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Join FLexlaw to unlock all legal intelligence“The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior enumerated felony or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later.”
The statutory requirement that the court interpreted; demonstrates the necessity of proving release from prison.
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Join FLexlaw to unlock all legal intelligenceStephenson was convicted of two counts of armed robbery and one count of attempted armed robbery occurring on July 19, 1992. At sentencing, the trial …
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PARKER, Judge.
Edgar Eugene Stephenson appeals his sentences, arguing that the trial court erred in designating and sentencing him as a habitual violent felony offender. We agree and reverse.
Stephenson was convicted of two counts of armed robbery and one count of attempted armed robbery. The crimes occurred on July 19, 1992. At Stephenson’s sentencing, the parties and the court referred to the presentence investigation report; however, this court has a certificate from the circuit court clerk that it was not made part of the trial court record. Further, it is apparent from the transcript that the court received State’s Exhibit No. 1 into evidence which contained certified copies of Stephenson’s prior convictions which consisted of robbery with a firearm, delivery of cannabis, and aggravated assault, all of which were dated June 25, 1981. This exhibit also was not made a part of the trial court record. Stephenson’s attorney agreed that Stephenson was “under restraint” on December 20, 1989, not specifying whether Stephenson was in prison or on parole. The state argued, and the trial court accepted, that as long as Stephenson was on parole in December 1989, he met the requirements to be sentenced as a habitual violent felony offender. One of the requirements necessary to qualify as a habitual violent felony offender is contained in section 775.084(l)(b)2, Florida Statutes (1991), which provides:
The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior enumerated felony or within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later[.]
The state has interpreted the statute incorrectly. In order to be sentenced as a habitual violent felony offender, the felony for which the defendant is being sentenced must have been committed within five years of his release from prison, not release from probation or parole. See Allen v. State, 487 So. 2d 410 (Fla. 4th DCA 1986). The state never proved when Stephenson was released from the prison sentence. Thus, this court is compelled to reverse the habitual violent felony offender designation and sentences. Because Stephenson did not object at the sentencing hearing to the insufficiency of the proof that he met the requirements of the habitual violent felony offender statute, the state shall have the opportunity on remand to establish that Stephenson qualifies as a habitual violent felony offender. See Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991).
Reversed and remanded.
FRANK, A.C.J., and FULMER, J., concur.
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…t defendant was person convicted of predicate felonies used to support HFO sentencing); Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996) (resentencing ordered where State did not provide affirmative proof of critical dates); Stephenson v. State, 666 So. 2d 573 (Fla. 2d DCA 1996) (resentenc-ing ordered where State failed to provide sufficient evidence that defendant committed present offenses within five years of release from prison); Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995) (resentenc-ing ordere…
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Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996)…trial court’s sentencing of Reynolds as a habitual offender, were grounded upon a misinterpretation of the statute. The prison release date, not the parole release date, triggers commencement of the five-year window period. See Stephenson v. State, 666 So. 2d 573 (Fla. 2d DCA 1996). Although one might assume that Reynolds remained incarcerated for his 1985 conviction in September of 1986, five years prior to the commission of his new crim.es, the record does not disclose support for that assumption. Thus, th…
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Bush v. State, 691 So. 2d 591 (Fla. 2d DCA 1997)…ther qualified offense. See § 775.084(l)(a)2., Fla. Stat. (1995). Based on these concessions, the trial court could not sentence the appellant as a habitual felony offender because he did not meet the statutory requirements. See Stephenson v. State, 666 So. 2d 573, 574 (Fla. 2d DCA 1996); Johnson v. State, 576 So. 2d 916, 918 (Fla. 2d DCA 1991). Accordingly, we remand this case to the trial court to permit the appellant to withdraw his plea. Reversed and remanded with instructions. FRANK, A.C.J., and LAZZ…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orrin Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991)
- Kings Point Cmty. Ass'n, Inc. v. Dravitch, 487 So. 2d 410 (Fla. 4th DCA 1986)
- Allen v. State, 487 So. 2d 410 (Fla. 4th DCA 1986)