MACK ROLLINS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Mack Rollins appeals his conviction and sentence for aggravated battery as a habitual offender. The court affirmed his conviction and sentence, rejecting his challenges to voir dire restrictions and the validity of his habitual offender enhancement based on a drug possession predicate conviction.
The court held that Rollins' first issue was not preserved for appeal due to lack of contemporaneous objection. On the merits, the court held that a habitual offender sentence is permissible when the current conviction is not a section 893.13 violation, even if one predicate conviction involves drug possession, because the statute only prohibits habitualization when both the current conviction and one predicate conviction involve section 893.13 violations.
[1] A defendant's alleged impropriety in the restriction of voir dire questioning is not preserved for appellate review absent a contemporaneous objection, request for curati…
[2] A defendant may be sentenced as a habitual felony offender even if one of the two predicate felony convictions is for possession of a controlled substance, provided that…
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Join FLexlaw to unlock all legal intelligence“In the absence of, any contemporaneous objection, request for curative instruction or motion for mistrial, and a renewal of the same prior to the impaneling of the jury, this alleged impropriety has not been preserved for appellate review.”
Establishes the preservation requirement for trial court errors; lack of contemporaneous objection bars appellate consideration.
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Join FLexlaw to unlock all legal intelligenceRollins was convicted by jury of aggravated battery with a deadly weapon and sentenced as a habitual offender. His prior felony convictions included o…
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PER CURIAM.
After a jury trial, the appellant, Mack Rollins, was convicted and sentenced for aggravated battery with a deadly weapon as a habitual offender. He raises two issues on this appeal.
First, he asserts that where his defense was that of self-defense, the trial court improperly restricted his counsel’s voir dire questioning of the prospective jurors regarding their views on the law of self-defense and the facts of this particular case. We note from the record, however, that Rollins’ counsel never interposed any objection to the trial court’s restriction of his voir dire questioning. In the absence of, any contemporaneous objection, request for curative instruction or motion for mistrial, and a renewal of the same prior to the impaneling of the jury, this alleged impropriety has not been preserved for appellate review. See Franqui v. State, 699 So. 2d 1332, 1334 (Fla.1997), petition for cert. filed, — U.S. -, 118 S.Ct. 1337, — L.Ed.2d - (1998); Karp v. State, 698 So. 2d 577, 578 (Fla. 3d DCA 1997); Fruetel v. State, 638 So. 2d 966, 972 (Fla. 4th DCA 1994); Jones v. State, 582 So. 2d 110, 111 (Fla. 3d DCA), appeal dismissed, 592 So. 2d 681 (Fla.1991); Harris v. State, 564 So. 2d 1211, 1212 (Fla. 3d DCA 1990); Griffin v. State, 502 So. 2d 1350, 1352 (Fla. 2d DCA 1987); Scott v. State, 396 So. 2d 271, 271 (Fla. 3d DCA 1981); Williams v. State, 305 So. 2d 45, 46 (Fla. 1st DCA 1974).
Rollins next argues that his habitual offender sentence imposed pursuant to section 775.084(l)(a), Florida Statutes (1995) was inappropriate where one of the predicate felony convictions relied upon to support the enhanced sentence was a conviction for pos session of cocaine pursuant to section 893.13(6)(a), Florida Statutes (1995). Essentially, Rollins maintains that the habitual offender statute precludes habitualization where one of the two predicate convictions is a violation of section 893.13. We find no merit to this argument and find that Rollins has simply misconstrued section 775.084.
Section 775.084(l)(a) provides in relevant part that:
(a) “Habitual felony offender” means á defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses;
* * * * * *
3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance_
By the plain language of this statute, a defendant may not be sentenced as a habitual felony offender if both the felony for which, the defendant is to be sentenced and one of the two prior predicate felony convictions involves a violation of section 893.13 relating to the purchase or possession of a controlled substance. See Gagger v. State, 699 So. 2d 347, 347 (Fla. 5th DCA 1997); Hayes v. State, 677 So. 2d 304, 305 (Fla. 1st DCA 1996).
In this case, Rollins was convicted of aggravated battery with a deadly weapon and not a violation of section 893.13. He had two prior felony convictions, one of which was for possession of a controlled substance as prescribed by section 893.13(6)(a); the other was for burglary of a structure and grand theft second degree. Thus, because one of these two predicate convictions, and the conviction in this case, are not violations of section 893.13, Rollins’ enhanced sentence was not error. Thus, finding no reversible error, Rollins’ conviction and sentence must be affirmed.
Affirmed.
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Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002)…substance.” § 775.084(1)(a)(3.), Fla. Stat. (1997); see Ishmael v. State, 735 So. 2d 509, 510 (Fla. 2d DCA 1999)(“section 775.084(1)(a)(3.) ... only prohibits habitualization if both prior offenses are for purchase or possession”); Rollins v. State, 707 So. 2d 823, 824-25 (Fla. 3d DCA 1998). We recognize that subparagraph 3 to paragraph 1(a) of section 775.084 contains a grammatical error because the sentence has a plural noun (“The felony ... and one of the two prior felony convictions ... ”) and a singula…
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Gutierrez v. State, 854 So. 2d 218 (Fla. 3d DCA 2003)…3d DCA 1998). Further, one of the predicate offenses is allowed to be a felony conviction for “a violation of s.893.13 relating to the purchase or the possession of a controlled substance.” § 775.084(l)(a)3., Fla. Stat. (1997); see Rollins v. State, 707 So. 2d 823, 825 (Fla. 3d DCA 1998).4 Thus, the trial court correctly denied relief on the defendant’s claim that he does not qualify as a habitual offender. We agree with the trial court in denying relief on the claim that trial counsel had a conflict of inte…
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Barnette v. State, 768 So. 2d 1246 (Fla. 5th DCA 2000)…rial before the jury was sworn. See Joiner v. State, 618 So. 2d 174 (Fla.1993); Karp v. State, 698 So. 2d 577 (Fla. 3d DCA 1997); see also Franqui v. State, 699 So. 2d 1332 (Fla.1997); Melbourne v. State, 679 So. 2d 759 (Fla.1996); Rollins v. State, 707 So. 2d 823 (Fla. 3d DCA 1998). Therefore, we affirm the appellant’s conviction for lewd and lascivious assault upon a child. The other issues raised by appellant relate to his conviction for violating subsection 827.04(1), Florida Statutes (1997). We find the…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Franqui v. State, 699 So. 2d 1332 (Fla. 1997)
- Marlin Mason Karp v. State, 698 So. 2d 577 (Fla. 3d DCA 1997)
- Scott v. State, 396 So. 2d 271 (Fla. 3d DCA 1981)
- Fed. Deposit Ins. Corp. v. Est. OF Harry Hood Bassett, 638 So. 2d 966 (Fla. 3d DCA 1994)
- Harris v. State, 564 So. 2d 1211 (Fla. 3d DCA 1990)
- Isom v. State, 582 So. 2d 110 (Fla. 3d DCA 1991)
- Jones v. State, 582 So. 2d 110 (Fla. 3d DCA 1991)
- Williams v. State, 305 So. 2d 45 (Fla. 1st DCA 1974)
- Augusta Hayes v. State, 677 So. 2d 304 (Fla. 1st DCA 1996)
- Gagger v. State, 699 So. 2d 347 (Fla. 5th DCA 1997)