MORRIS BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction as a habitual felony offender was reversed because he did not meet the statutory five-year requirement, and the case was remanded to allow him to withdraw his plea.
A defendant does not qualify as a habitual felony offender when the offenses were committed more than five years after release from a prior felony conviction.
[1] A defendant sentenced as a habitual felony offender must have committed the charged offense within five years of release from a prior felony conviction, and failure to me…
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Join FLexlaw to unlock all legal intelligenceBush pleaded guilty to possession of cocaine and felon in possession of a firearm committed May 2, 1995. He was sentenced as a habitual felony offende…
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PER CURIAM.
Pursuant to a negotiated plea, the appellant received time served for possession of cocaine and thirty-six months’ probation as a habitual felony offender for felon in possession of a firearm. He challenges only his sentence as a habitual felony offender for the offense of felon in possession of a firearm committed May 2,1995.
Unbeknownst to the trial court at sentencing, the appellant did not qualify as a habitual felony offender. Both the state and the appellant now agree that he committed the offenses for which he is being sentenced in this circuit court case more than five years from the date of his release from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other 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 LAZZARA and FULMER, JJ., concur.
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Allen v. State, 98 So. 3d 1274 (Fla. 1st DCA 2012)…a third-degree felony. The appellant is correct, and in response to this Court’s order issued pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), the state concedes error. See § 893.13(6)(a), Florida Statutes (1997); Grandison v. State, 691 So. 2d 591 (Fla. 1st DCA 1997). Consequently, the lower court is directed to treat the motion as having been filed under rule 3.800(a), and [*1275] to correct the judgment to reflect that the appellant’s conviction for simple possession constitutes a third-deg…
Authorities Cited
- Orrin Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991)
- Stephenson v. State, 666 So. 2d 573 (Fla. 2d DCA 1996)