TOMMY DUES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a double jeopardy claim based on convictions for armed robbery and grand theft of an automobile may not be procedurally barred. However, a claim regarding habitualized sentencing for armed robbery was without merit.
Tommy Dues was convicted of armed robbery and grand theft of an automobile. He filed a motion for post-conviction relief alleging double jeopardy viol…
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PER CURIAM.
Tommy Dues appeals summary denial of his motion for post-conviction relief. For the reasons described below, we affirm in part, reverse in part, and remand for further proceedings.
Dues was tried and convicted of armed robbery and grand theft of an automobile. His motion for post-conviction relief alleged that these two convictions violated double jeopardy. Appellant may be correct if the armed robbery conviction was based solely upon the taking of the automobile. Sirmons v. State, 634 So. 2d 153 (Fla.1994). The trial court incorrectly concluded that this claim was barred because it could have been raised on direct appeal. Lippman v. State, 633 So. 2d 1061 (Fla.1994). Accordingly, we reverse. and remand to the trial court for further proceedings with regard to this claim.
Appellant’s argument that he was improperly given a habitualized sentence is without merit. This claim was based upon appellant’s mistaken theory that he was or should have been charged with a life felony. However, appellant’s armed robbery conviction was a first-degree felony punishable by life pursuant to section 812.13(2)(a), Florida Statutes. A defendant convicted of a felony in this degree may be habitualized. Burdick v. State, 594 So. 2d 267 (Fla.1992). Re-classification of this crime to a life felony pursuant to section 775.087(l)(a) would have been improper. Standley v. State, 554 So. 2d 1200 (Fla. 2d DCA 1989).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED FOR FURTHER PROCEEDINGS.
BARFIELD, C.J., and KAHN and WEBSTER, JJ., concur.
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Betancourt v. State, 804 So. 2d 313 (Fla. 2001)…ceded from the Eady holding. See Brown v. State, 24 Fla. L. Weekly D2753, — So. 2d -, 1999 WL 1112715 (Fla. 1st DCA Dec.8, 1999) (affirming a life sentence for an armed burglary because it is a first-degree felony punishable by life); Dues v. State, 716 So. 2d 282 (Fla. 1st DCA 1998) (affirming a habitualized sentence for a first-degree felony punishable by life); Knickerbocker v. State, 619 So. 2d 18 (Fla. 1st DCA 1993) (affirming a habitualized life sentence for a first-degree felony punishable by life); se…
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Betancourt v. State, 767 So. 2d 557 (Fla. 3d DCA 2000)…le by life imprisonment. We doubt that the First District would follow the quoted portion of the Eady decision today. See Brown v. State, 24 Fla. L. Weekly D2753, D2754, - So. 2d -, 1999 WL 1112715 (Fla. 1st DCA Dec. 8, [*559] 1999); Dues v. State, 716 So. 2d 282, 283 (Fla. 1st DCA 1998); Patterson v. State, 693 So. 2d 74, 75 (Fla. 1st DCA 1997); Roberts v. State, 685 So. 2d 88, 89 (Fla. 1st DCA 1996); Knickerbocker v. State, 619 So. 2d 18, 19 (Fla. 1st DCA 1993). We have, however, been unable to find that t…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- Lippman v. State, 633 So. 2d 1061 (Fla. 1994)
- Standley v. State, 554 So. 2d 1200 (Fla. 2d DCA 1989)