GLENN DONALD FRESHMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentence is illegal if the record affirmatively shows a failure to comport with statutory requirements, even if the statute itself is constitutional.
[1] A sentence is illegal if the record affirmatively shows a failure to comport with statutory requirements for habitual offender status.
[2] Out-of-state convictions cannot serve as predicate offenses for habitual offender sentencing if the defendant was within the window period established by Baxter v. …
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Join FLexlaw to unlock all legal intelligenceThe appellant challenged his habitual offender sentence, arguing it was illegal because it was based on out-of-state convictions that did not qualify …
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PER CURIAM
Glenn Donald Freshman challenges the trial court’s rejection of his claim raised pursuant to Florida Rule of Criminal Procedure 3.800 that his habitual offender sentence is illegal. We agree that there is error, and reverse.
The order declaring Freshman a habitual offender shows that Freshman’s predicate offenses were out-of-state convictions. Freshman was within the “window period”, as outlined in Baxter v. State, 616 So. 2d 47 (Fla.1993), such that he could not be sentenced as a habitual felony offender based on prior out-of-state convictions. See State v. Johnson, 616 So. 2d 1 (Fla.1993)(Chapter 89-280, the only authority for out-of-state felony convictions to be the basis of habitual offender sentences, was found unconstitutional as violating the single subject rule).
We recognize that at the time the trial court denied the motion Davis v. State, 661 So. 2d 1193 (Fla.1995), appeared to limit an “illegal sentence” to one that exceeds the statutory maximum for the crime at issue. The supreme court has since rejected the contention that its holding in Davis mandates that only those sentences that facially exceed the statutory máximums may be challenged under rule 3.800(a) as illegal. State v. Mancino, 714 So. 2d 429, 433 (Fla.1998); Hopping v. State, 708 So. 2d 263, 265 (Fla.1998).
While Mancino concerned the denial of jail credit, the supreme court commented that a “sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal’ ”.
We find illegal a sentence for which the record, in this case the order declaring Freshman a habitual offender, affirmatively shows a failure to comport with the statutory requirements of the habitual offender statute which were not unconstitutional. See § 775.084, Fla. Stat. (1989). Accordingly, we reverse and remand for the trial court either to resentence Freshman or to permit the plea to be withdrawn and the case to proceed to trial. Hawes v. State, 712 So. 2d 834 (Fla. 4th DCA 1998); Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994).
REVERSED AND REMANDED.
DELL, KLEIN and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bover v. State, 797 So. 2d 1246 (Fla. 2001)…l in Bell v. State, 693 So. 2d 700 (Fla. 2d DCA 1997), Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997), and Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991) (en banc), and the decision of the Fourth District Court of Appeal in Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. This Court recently determined in Carter v. State, 786 So. 2d 1173, 1180-81 (Fla.2001), that a habitual offender sentence may be correctable as an illegal sentence pursua…
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Bover v. State, 732 So. 2d 1187 (Fla. 3d DCA 1999)…a sentence that the trial court could, as a matter of law, have imposed. Such an error can be determined at any time from a review of the defendant’s criminal records. Id. at 78 (emphasis added); see also Freshman v. State, 24 Fla. L. Weekly D707, 730 So. 2d 351 (Fla. 4th DCA 1999); Bell v. State, 693 So. 2d 700 (Fla. 2d DCA 1997); Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997). The logic of Judge is that the habitual offender statute increases the legal maximum-term. In the present case, habituali-za…1 / 2
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Shelton v. State, 739 So. 2d 1235 (Fla. 4th DCA 1999)…ial court’s order denying Shelton’s motion to vacate and correct illegal sentence. On the 1987 charges we remand for either resentencing or to permit the state to seek to vacate the judgment and sentence, and proceed to trial. See Freshman v. State, 730 So. 2d 351, 352 (Fla. 4th DCA 1999); Hawes v. State, 712 So. 2d 834, 835 (Fla. 4th DCA 1998). On the 1988 conviction we remand for resentencing. We affirm appellant’s sentence on his 1989 conviction. AFFIRMED, in part; REVERSED, in part, and REMANDED. DELL,…
Previewing 3 of 7 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)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Darin S. Hopping v. State, 708 So. 2d 263 (Fla. 1998)
- Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)
- Hawes v. State, 712 So. 2d 834 (Fla. 4th DCA 1998)
- Baxter v. State, 616 So. 2d 47 (Fla. 1993)