GEORGE BAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's habitual felony offender sentence for felony petit theft was vacated because the 1992 amendment to section 812.014 eliminated such enhancement for this offense, and this illegal sentence constitutes fundamental error reviewable on direct appeal despite lack of trial objection.
A sentence imposing habitual felony offender enhancement for felony petit theft violates section 812.014 and constitutes fundamental error remediable on direct appeal even without trial objection.
[1] A sentence imposing habitual felony offender enhancement for felony petit theft violates section 812.014 and constitutes fundamental error reviewable on direct appeal wit…
Previewing 1 of 1 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“a sentence is illegal 'by definition' when it 'patently fails to comport with statutory or constitutional limitations.'”
The court cited State v. Mancino for the standard that illegal sentences are remediable as fundamental error.
Baker was convicted of felony petit theft and sentenced as a habitual felony offender. The legislature amended section 812.014 in 1992 to eliminate ha…
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PER CURIAM.
We withdraw our previous opinion and substitute this opinion. Appellant contends that his conviction for felony petit theft was not subject to enhancement under the habitual felony offender statute because the legislature, in 1992, amended section 812.014, Florida Statutes, to eliminate habitual felony offender sentencing for felony petit theft. See Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997); Berch v. State, 691 So. 2d 1148 (Fla. 3d DCA 1997). The issue is whether appellant may raise on direct appeal this sentencing error, which was never objected to by his trial counsel.
In Nelson v. State, we considered whether the same unpreserved sentencing error could be heard on appeal as fundamental error. No. 97-3435, 23 Fla. L. Weekly D2241, 719 So. 2d 1230 (Fla. 1st DCA 1998)(en banc). This court noted that in State v. Mancino, 714 So. 2d 429, 433 (Fla.1998), the supreme court announced that a sentence is illegal “by definition” when it “patently fails to comport with statutory or constitutional limitations.” Applying Mancino to the direct appeal of a criminal conviction, Nelson found that a sentence which fails to comport with the statutory limitations of section 812.014 is remediable as fundamental error. Accordingly, appellant’s habitual felony offender sentence is VACATED, and this case is REMANDED for resentencing.
BARFIELD, C.J., JOANOS and KAHN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wilson v. State, 752 So. 2d 1227 (Fla. 5th DCA 2000)…since held that a defendant cannot be sentenced as an habitual felony offender under the amended petit theft statute. See, e.g., Burke v. State, 734 So. 2d 1175 (Fla. 4th DCA 1999); Blank v.. State, 726 So. 2d 854 (Fla. 2d DCA 1999); Baker v. State, 724 So. 2d 121 (Fla. 1st DCA 1998); Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998); Ridley, supra; Berch, supra. Wilson agreed as a condition of his original plea in the 1993 cases that there was a possibility he could be habitualized if he violated his com…
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Rainey v. State, 741 So. 2d 1207 (Fla. 1st DCA 1999)…t term was defined by the supreme court in Mancino, 714 So. 2d at 433, because the sentence “patently fails to comport with statutory or constitutional limitations”; and that the error is fundamental and, thus, need not be preserved. Baker v. State, 724 So. 2d 121 (Fla. 1st DCA 1998); Nelson, 719 So. 2d at 1233; Stanford, 706 So. 2d at 901. Like defendant Stanford, Rainey is covered by the statutory provision governing trafficking in cocaine that states, in pertinent part, that if the quantity of cocaine is 2…
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Calloway v. State, 734 So. 2d 1079 (Fla. 1st DCA 1999)…ils to comport with statutory or constitutional limitations is by definition ‘illegal’.”). See also Nelson v. State, 719 So. 2d 1230, 1231-1232 (Fla. 1st DCA 1998); Sanders v. [*1080] State, 698 So. 2d 377 (Fla. 1st DCA 1997). Accord Baker v. State, 724 So. 2d 121 (Fla. 1st DCA 1998)[23 Fla. L. Weekly D2562]; Copeland v. State, 720 So. 2d 608 (Fla. 1st DCA 1998)[23 Fla. L. Weekly D2519]; McKnight v. State, — So. 2d - (Fla. 1st DCA 1998)[23 Fla. L. Weekly D2402], It is undisputed that appellant does not qual…
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
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997)
- Berch v. State, 691 So. 2d 1148 (Fla. 3d DCA 1997)