STEVEN SIMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A successor judge cannot impose habitual offender sanctions after the original judge suspended them, as this constitutes an improper hybrid sentence.
[1] A trial court's suspension of habitual offender sanctions at the initial sentencing hearing, without imposing actual sanctions, precludes the imposition of habitual offen…
[2] A suspended habitual offender sentence, where no actual sanctions are imposed, is considered a legal fiction and does not constitute a valid imposition of habitual offend…
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Join FLexlaw to unlock all legal intelligenceAppellant was declared an habitual offender and sentenced to 50 years, but the sentence was suspended and probation imposed. Upon revocation of probat…
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STEVENSON, Judge.
Appellant, Steven Simon, appeals an habitual offender sentence, which was imposed following revocation of probation. At the sentencing hearing for the underlying offenses, Judge Hubert Lindsay “declared” appellant an habitual offender and sentenced him to a consecutive total of fifty years incarceration for five separate counts, but suspended that sentence and placed appellant on probation for a concurrent total of five years with the special condition that appellant complete the drug farm program. Upon revocation of appellant’s probation due to probation violations, Judge Marvin Mounts sentenced appellant to a total of sixty-five (65) years incarceration as an habitual offender. Because the original trial judge failed to initially impose an habitual offender sentence, we conclude that the subsequent imposition of habitual offender sanctions by the successor trial judge amounted to an improper “hybrid” sentence.
When the trial court suspended the imposition of any habitual offender sanctions at the original sentencing hearing, the trial court necessarily found that the imposition of an enhanced sentence was “not necessary for the protection of the public.” See § 775.084(4)(c), Fla. Stat. (1993). Therefore, we find that this case is controlled by King v. State, 681 So. 2d 1136 (Fla.1996.) Having declined to actually impose an habitual offender sentence at the original sentencing hearing, the trial court may not, upon revocation of probation, impose an habitual offender sentence absent agreement by the defendant. Appellant’s “suspended” sentence as an habitual offender was nothing more than a legal fiction where he suffered no actual habitual offender sanctions.1 Accordingly, we reverse and remand for the imposition of a guidelines or, if appropriate, departure sentence.
REVERSED and REMANDED.
DELL and SHAHOOD, JJ., concur. . In fact, the "suspended” fifty year habitual offender sentence, which was orally imposed by the trial court at the sentencing hearing, was not even mentioned in the written judgment of guilt and probation order.
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Citator
Cited By
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Welling v. State, 748 So. 2d 314 (Fla. 4th DCA 1999)…the trial court subsequently suspended the habitual offender sanctions, it necessarily found that the imposition of an enhanced sentence was “not necessary for the protection of the public.” See Geohagen v. State, 639 So. 2d at 612; Simon v. State, 684 So. 2d 263, 264 (Fla. 4th DCA 1996) (quoting Fla. Stat. § 775.084(4)(c)). The trial court should have sentenced Kennedy pursuant to the sentencing guidelines with written reasons for the downward departure since it did not sentence him as an habitual felony of…1 / 2
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State v. Kennedy, 698 So. 2d 349 (Fla. 4th DCA 1997)…the trial court subsequently suspended the habitual offender sanctions, it necessarily found that the imposition of an enhanced sentence was “not necessary for the protection of the public.” See Geohagen v. State, 639 So. 2d at 612; Simon v. State, 684 So. 2d 263, 264 (Fla. 4th DCA 1996) (quoting Fla. Stat. § 775.084(4)(c)). The trial court should have sentenced Kennedy pursuant to the sentencing guidelines with written reasons for the downward departure since it did not sentence him as an habitual felony of…
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Battle v. State, 710 So. 2d 628 (Fla. 2d DCA 1998)…s no record evidence that the trial court in fact imposed an enhanced sentence. Consequently, it was error to sentence Battle as a habitual offender upon revocation of probation. See Henry v. State, 632 So. 2d 676 (Fla. 2d DCA 1994); Simon v. State, 684 So. 2d 263 (Fla. 4th DCA 1996). Accordingly, based upon the foregoing, we reverse and vacate Battle’s habitual offender sentence and remand this matter for further sentencing consideration consistent with this opinion. CAMPBELL, A.C.J., and NORTHCUTT, J., co…
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- King v. State, 681 So. 2d 1136 (Fla. 1996)