KENNETH LOWENTHAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lowenthal appealed his habitual violent felony offender (HVFO) sentence, arguing procedural and substantive errors. The court vacated the HVFO designation, finding the trial court erred by imposing it without evidence of the required prison release date, and remanded for new sentencing with opportunity for the state to present proof.
The trial court erred by classifying Lowenthal as a habitual violent felony offender without substantiated proof of his prison release date. Defense counsel's general agreement to the classification did not waive the trial court's independent duty to make specific findings establishing all three required dates: the current offense date, prior felony conviction date, and prison release date.
[1] A trial court errs by classifying a defendant as a habitual violent felony offender without substantiated proof of the defendant's prison release date.
[2] The state must furnish proof of the date of the current felony offense, the date of the conviction for the last prior felony, and the date of the defendant's release from…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the state must furnish proof of the following three dates: (1) the date of the current felony offense, (2) the date of the conviction for the last prior felony, and (3) the date that the defendant was released from prison imposed for the last felony conviction, regardless of whether the defendant was released on parole or community control”
Establishes the statutory requirements for habitual violent felony offender enhancement that the state must prove.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLowenthal was sentenced as a habitual violent felony offender in November 1995. Although his defense attorney agreed to the classification at sentenci…
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PARKER, Chief Judge.
In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the public defender has suggested several arguments, one of which has merit. Lowenthal also has filed a pro se brief discussing the same issues. We affirm on all issues which were raised except for the habitual violent felony offender sentence. Our independent review of the record reveals that the trial court erred by classifying Low-enthal as a habitual violent felony offender without substantiated proof of his prison release date.
Although the defense attorney agreed at the November 1995 sentencing hearing that Lowenthal qualified for this classification, there is no evidence in this record of the date of Lowenthal’s release from prison. It was error for the trial court to make this determination without sufficient evidence before the court. In Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996), this court noted that the state must furnish proof of the following three dates: (1) the date of the current felony offense, (2) the date of the conviction for the last prior felony, and (3) the date that the defendant was released from prison imposed for the last felony conviction, regardless of whether the defendant was released on parole or community control. See also § 775.084(1)(a)2, Fla. Stat. (1995). Furthermore, in Moore v. State, 608 So. 2d 926, 927 (Fla. 2d DCA 1992), this court held that defense counsel’s general statements that the defendant could be classified as a habitual felony offender did not waive the duty of the trial court to make specific findings on the record that the defendant met the requirements.
Accordingly, we vacate the habitual violent felony offender sentence and remand for a new sentencing hearing. Because the defense failed to object to the trial court’s classification of Lowenthal as a habitual violent felony offender on the grounds that the court did not have sufficient evidence of the release date, the trial court, on remand, should permit the state to present substantiated proof of a prison release date. Thereafter, the trial court can determine whether Lowenthal meets the requirements and, if so, sentence him again as a habitual violent felony offender. See Davis v. State, 588 So. 2d 289 (Fla. 2d DCA 1991).
Reversed and remanded.
ALTENBERND and NORTHCUTT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996)
- N.E.R. v. State, 588 So. 2d 289 (Fla. 2d DCA 1991)
- Queen Tucker Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992)