NICHOLAS E. KLEIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a habitual violent felony offender sentence was illegal for burglary of a dwelling with assault or battery with a firearm and armed kidnapping.
Nicholas Klein was convicted of burglary, armed kidnapping, and armed robbery and sentenced as a habitual violent felony offender. He filed a motion t…
The full statement of facts, procedural history, and disposition for this case are member content.
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[*116] PER CURIAM.
Nicholas Klein appeals the trial court’s order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Klein alleged in his motion that his sentence as a habitual violent felony offender for burglary of a dwelling with assault or battery with a firearm is illegal. We agree and reverse the trial court’s order. Klein’s other arguments are without merit.
In 1990, Klein was convicted of burglary of a dwelling with assault or battery with a firearm, armed kidnapping, and armed robbery. He was sentenced as a habitual violent felony offender on all three charges. Klein is correct that the habitual violent felony offender sentence is illegal as to the burglary conviction. See Nathan v. State, 689 So. 2d 1150 (Fla. 2d DCA 1997).
Although not raised by Klein in his motion, the habitual violent felony offender sentence is also illegal as to the armed kidnapping conviction. Klein’s sentence for kidnapping was enhanced to a life felony pursuant to section 775.087, Florida Statutes (1989). As a life felony it was not subject to habitual violent felony offender sentencing under the statute then in effect. See Lamont v. State, 610 So. 2d 435 (Fla.1992), Therefore, we reverse and remand for resentencing on the burglary and kidnapping charges.
Reversed and remanded.
THREADGILL, A.C.J., and WHATLEY and GREEN, JJ., Concur.
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Collins v. State, 800 So. 2d 660 (Fla. 2d DCA 2001)…ense. See also Devlin v. State, 26 Fla. L. Weekly D2200, — So. 2d - (Fla. 2d DCA Sept.12, 2001). Thus, in the present case, Collins’ sentences as a habitual violent felony offender for the offense of armed kidnapping are illegal. See Klein v. State, 731 So. 2d 115 (Fla. 2d DCA 1999).1 Therefore, we reverse that portion of the trial court’s order as it relates to the armed kidnapping counts. We remand to the trial court with directions to strike the habitual violent felony offender adjudications from those cou…1 / 2
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Franco Omound v. State, 743 So. 2d 616 (Fla. 3d DCA 1999)…dwelling with an assault or battery with a firearm. Defendant committed the crime before October 1, 1995. At that time, the statute did not provide for habitualization of a life felony. See Lamont v. State, 610 So. 2d 435 (Fla.1992); Klein v. State, 731 So. 2d 115 (Fla. 2d DCA 1999); Watkins v. State, 706 So. 2d 118 (Fla. 3d DCA 1998); Grant v. State, 677 So. 2d 45 (Fla. 3d DCA 1996). Accordingly, we vacate the sentence on that count and remand for resentencing only on the armed burglary conviction. The order…
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Thomas v. State, 791 So. 2d 1254 (Fla. 3d DCA 2001)…ate has agreed, the life sentence imposed upon the appellant as a habitual violent felony offender for the crime of burglary with an assault with a deadly weapon is vacated, see Thomas v. Singletary, 751 So. 2d 66 (Fla. 2d DCA 1999); Klein v. State, 731 So. 2d 115 (Fla. 2d DCA 1999), and the cause is remanded for resentencing as to that offense alone. His life sentence with minimum mandatory provisions as a habitual violent felony offender as to the offense of armed robbery was, however, correct, see § § 775.…
Authorities Cited
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- Glisson v. State, 689 So. 2d 1150 (Fla. 5th DCA 1997)
- Nathan v. State, 689 So. 2d 1150 (Fla. 2d DCA 1997)