RONALD DESTRA A/K/A RONALD DESTAR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The sole issue on this appeal involves the appellant’s sentence as a habitual violent felony offender. The crimes of which he was convicted in this case occurred while Destra was on community control, after adjudication was withheld, for a previous offense. He argues, and the state concedes, that Overstreet v. State, 629 So. 2d 125 (Fla.1993), requires reversal of the sentence.
We agree. In Overstreet, the Supreme Court specifically held that section 775.084(2), Florida Statutes (1991), which provides that “placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction” for habitual sentencing purposes, does not apply when the defendant is actually incarcerated at the time of the subsequent offense. Since actual imprisonment presents an a fortiori situation to community control, Overstreet plainly controls. Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995).
Accordingly, the habitual violent felony offender sentence is reversed and the cause remanded for resentencmg. The convictions are affirmed.
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David R. MAY Ad Litem of the Estate of Oscar T. Bradley v. Ill. Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000)…288 (Fla. 2d DCA 1998), under section 733.706, “a judgment holder is not free to execute on estate property simply by virtue of the fact that she holds a judgment. The judgment holder must file a claim like any other claimant.” Cf. Payne v. Stalley, 672 So. 2d 822, 823-24 (Fla. 2d DCA 1995) (barring recovery from an estate for a judgment obtained in federal court, even though section 733.702 was not raised as a defense in the federal court action, where the claim filed in the probate proceedings was untimely)…
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MAY v. State, 713 So. 2d 1087 (Fla. 2d DCA 1998)…n narrowly, and determined that because it specifically 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…
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Suarez v. State, 808 So. 2d 1288 (Fla. 3d DCA 2002)…ntrol, not probation, following a withhold of adjudication when he committed the offenses in case numbers 92-10836 and 92-15322. Overstreet v. State, 629 So. 2d 125 (Fla.1993); May v. State, 713 So. 2d 1087, 1088 (Fla. 2d DCA 1998); Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995). Further, the appellant was not adjudicated guilty in 91-3586 until after he was found guilty in 92-10836. See Schneider v. State, 788 So. 2d 1073, 1074 (Fla, 2d DCA 2001)(holding that habitual violent offender sentence was proper…
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- Overstreet v. State, 629 So. 2d 125 (Fla. 1993)
- Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)