EDDIE MICHAEL BELLAMY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eddie Bellamy appealed his conviction for delivery of cocaine and habitual felony offender sentencing. The appellate court affirmed the conviction but reversed the habitual offender sentence due to insufficient proof of the requisite temporal connection between the current and prior offenses.
The conviction was affirmed without discussion, but the habitual felony offender sentence was reversed and remanded. The State bears the obligation to prove both the conviction date of the defendant's last felony and the date of release from prison, and failure to make specific findings on the record about these dates constitutes reversible error even without objection from the defendant.
[1] To qualify a defendant as a habitual felony offender, the State must prove that the current felony was committed within five years of the conviction of the defendant's la…
[2] The State bears the burden of proving the dates of a defendant's prior felony convictions and release dates from supervision to establish habitual felony offender status.
Previewing 2 of 5 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“To qualify a defendant as a habitual felony offender, the State must prove that "[t]he felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the defendant's last prior felony" or "within 5 years of the defendant's release ... from a prison sentence or other commitment imposed as a result of a prior conviction for a felony ..., whichever is later."”
Establishes the statutory requirement the State must satisfy to sentence someone as a habitual felony offender
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Join FLexlaw to unlock all legal intelligenceBellamy was convicted of delivery of cocaine committed on April 3, 1996. The State sought to sentence him as a habitual felony offender based on alleg…
The full statement of facts, procedural history, and disposition for this case are member content.
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NORTHCUTT, Judge.
Eddie Bellamy appeals his conviction for delivery of cocaine, and his sentence as a habitual felony offender.
We find no merit in his challenges to the conviction, and affirm it without discussion. We do agree that the trial court erred in sentencing Bellamy as a habitual felony offender. To qualify a defendant as a habitual felony offender, the State must prove that “[t]he felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the defendant’s last prior felony” or “within 5 years of the defendant’s release ... from a prison sentence or other commitment imposed as a result of a prior conviction for a felony ..., whichever is later.” § 775.084(l)(a) 2., Pla. Stat. (1995). The offense in this case was committed on April 3, 1996.
Therefore, the State was required to prove that Bellamy was convicted of a felony or released from supervision on a felony conviction after April 3, 1991. But when the trial court inquired about Bellamy’s previous convictions, the prosecutor responded merely that “[t]he most current felony is possession in 1991. Most current as far as [habitual felony offender treatment] would be 1990.” The State did not prove the dates on which Bellamy was sentenced for those felonies, or when, if sentenced, he was released from prison.
The record does not contain certified copies of the 1990 or 1991 convictions.
The court is required to make findings on the record that a defendant qualifies for habitual offender treatment. The judge here merely stated that he found “a factual basis for him to be treated as an Habitual Felony Offender.” This did not comply with the statute. See Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995).
We realize that a failure to make specific findings in such matters can be harmless error. See Herrington v. State, 643 So. 2d 1078 (Fla.1994).
But in Bellamy’s case the dates of his previous convictions could have been more than five years before the date of the current offense. Without copies of those convictions, or evidence of when Bellamy was released from supervision, we cannot say that Bellamy qualified as a habitual felony offender, and we cannot determine that the trial court’s failure to make specific findings was harmless.
The State contends Bellamy has waived this issue because he failed to object to the predicate convictions.
We disagree. In a very similar case, Lowenthal v. State, 699 So. 2d 319 (Fla. 2d DCA 1997), we held it was the State’s obligation under section 775.084 to prove both the conviction date of the defendant’s last felony and the date he was released from prison.
We reversed Lowenthal’s sentence even though he had not objected to the insufficiency of the evidence to qualify him as a habitual offender. Bellamy’s habitual offender sentence must be reversed, as well. Because Bellamy failed to object, on remand the State shall be permitted to present evidence of the dates of his convictions, or the dates of his release from prison. If the State submits proof sufficient to designate Bellamy a habitual felony offender, the court may resentence him as one. See Id. at 320.
Conviction affirmed, sentence reversed and remanded.
CAMPBELL, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…5th DCA 2000) (resentencing ordered where trial court erred in relying on two convictions that had been entered at the same time; an HFO sentence cannot be predicated upon an offense or conviction occurring after current offense); Bellamy v. State, 712 So. 2d 409 (Fla. 2d DCA 1998) (resentencing ordered where State did not prove the dates on which the defendant was convicted or released from prison); Hampton v. State, 711 So. 2d 200 (Fla. 5th DCA 1998) (resentencing ordered where defendant was incorrectly ad…
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Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001)…of of a prison release date. See id. At such time, if the trial court determines that the defendant meets the requirements for habitualization, it can then sentence him again as a habitual violent felony offender. See id.; see also Bellamy v. State, 712 So. 2d 409 (Fla. 2d DCA 1998). In this case the evidence was insufficient to prove appellant’s release date from prison. The court admitted the PSI as an exhibit which reflected appellant’s release from prison as being on December 27, 1996, even though the st…
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Donnie Smith v. State, 742 So. 2d 352 (Fla. 5th DCA 1999)…ress Smith’s claim that the trial court erroneously sentenced him as a habitual felony offender because the felony offender convictions offered did not satisfy the statutory requirements of section 775.084(1)(a), Fla. Stat. (1997). Bellamy v. State, 712 So. 2d 409 (Fla. 2d DCA 1998). The statute requires that the defendant must have been convicted of any combination of two or more felonies in this state, or other qualified offenses. A qualified offense is defined as any offense which is substantially similar…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herrington v. State, 643 So. 2d 1078 (Fla. 1994)
- Calvin's Heavy Equip., Inc. v. Kirkland, 699 So. 2d 319 (Fla. 1st DCA 1997)
- Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)