TIP PURCELL REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1996-01-26
No. 94-4311
WOLF, BENTON and VAN NORTWICK, JJ., concur.
666 So. 2d 1033 Florida District Court of Appeal, First District (1996) Positive Treatment
Cited by 2 cases

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Synopsis

Reed appeals his habitual offender sentence, contending it is illegal because the written sentencing order erroneously listed both predicate offenses as occurring on the same date, violating the statutory requirement that they be sequential. The court affirms the sentence but remands for entry of a corrected sentencing order reflecting the actual sequential dates of the convictions.


Holding

The habitual offender sentence is not illegal. Although the written sentencing order contains a dating error, the sentencing transcript clearly demonstrates the trial court properly relied on sequential 1988 and 1990 convictions as required by statute. The case is remanded for entry of a corrected sentencing order reflecting the accurate sequential dates.


Headnotes

[1] A habitual offender sentence is valid if the sentencing transcript demonstrates reliance on sequential predicate offenses, even if the written order contains a clerical e…

[2] The propriety of a habitual felony offender sentence is determined by the transcript of the sentencing hearing.

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Key Quotes

“the trial court erroneously recited November 9, 1990 as the date of conviction for the 1988 robbery when, in fact, the 1988 conviction occurred on or about August 19, 1988. November 9, 1990 was the date of revocation of Reed's probation in Case No. 88-1005.”

Establishes the nature of the error in the written sentencing order and clarifies what the incorrect date actually represented.

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Facts & Procedural History

Reed pled no contest to armed robbery on November 15, 1994, with the understanding he qualified for habitual offender sentencing. The trial court foun…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Tip Purcell Reed appeals his habitual offender sentence. For the reasons that follow, we affirm the sentence but remand for entry of a modified written sentencing order. On November 15, 1994, Reed pled no contest to armed robbery, in exchange for no particular sentence, with the understanding that he qualified for habitual offender sentencing. When Reed entered his plea, the assistant state attorney advised that he was going to seek habitual offender sentencing. The sentencing transcript indicates that the state introduced without objection two prior judgments and sentences, an armed robbery conviction in Case No. 88-1005 and a conviction for possession of a firearm by a convicted felon in Case No. 90-2559. Reed conceded that he met the criteria as a habitual offender. Unfortunately, in its oral pronouncement of the sentence, the trial court erroneously recited November 9, 1990 as the date of conviction for the 1988 robbery when, in fact, the 1988 conviction occurred on or about August 19, 1988. November 9, 1990 was the date of revocation of Reed’s probation in Case No. 88-1005. The error was repeated in the written sentencing order, which recites that appellant was convicted of two qualified offenses: armed robbery on November 9, 1990 and possession of a firearm by a convicted felon on November 9, 1990.

Section 775.084(5), Florida Statutes (1998), was amended to require that the predicate offenses for a habitual offender sentence be sequential. Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995). Appellant argues that, because on the face of the sentencing order his habitual offender sentence was predicated on offenses which were sentenced on the same date, rather than separately as required by the statute, his habitual offender sentence is illegal. We disagree.

The sentencing transcript, when read in its entirety, clearly indicates the state’s reliance upon appellant’s 1988 and 1990 sequential convictions for purposes of habitual offender sentencing. See McNeil v. State, 588 So. 2d 303 (Fla. 1st DCA 1991) (propriety of habitual felony offender sentence determined by transcript of sentencing hearing). In the order, however, the trial court mistakenly referred to November 9, 1990, the date appellant’s probation was revoked in Case No. 88-1005, as the date of conviction for the 1988 offense. Accordingly, the cause is remanded to the trial court with directions that an amended written sentencing order be entered reflecting that the habitual felony offender sentence is predicated on 1988 and 1990 sequential convictions.

WOLF, BENTON and VAN NORTWICK, JJ., concur.


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Citator

Cited By

  • Springer v. State, 730 So. 2d 285 (Fla. 1st DCA 1998)
    …PER CURIAM. AFFIRMED. See, e.g., Reed v. State, 666 So. 2d 1033 (Fla. 1st DCA 1996). BARFIELD, C.J., and WOLF and DAVIS, JJ., concur.…

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