MICHAEL ELMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in classifying the appellant as a habitual violent felony offender because one of the predicate offenses occurred after the instant offenses.
Appellant was convicted of robbery with a firearm and aggravated battery and sentenced as a habitual violent felony offender. One of the predicate off…
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PER CURIAM.
Appellant (Elmer) appeals his sentences for robbery with a firearm and aggravated battery following his conviction by a jury. He was sentenced to thirty years in prison for robbery with a firearm and fifteen years in prison for aggravated battery, both to run concurrently with each other. The trial court found that Elmer qualified as an habitual violent felony offender. Elmer argues that this was error because one of the predicate offenses relied upon to so classify him was committed after the instant offenses for which he was sentenced. We agree. Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997).
The trial judge also designated the sentences as departure sentences, pursuant to section 921.0016(3)(r), Florida Statutes (1995), in that robbery with a firearm is a level 9 offense, and one of Elmer’s previous offenses was a level 8 or higher offense. We agree with the State that the sentences imposed upon Elmer qualify as departure sentences.
Accordingly, we affirm the imposition of concurrent sentences of thirty years for robbery with a firearm and fifteen years for aggravated battery, but remand to the trial court with instructions that the classification of Elmer as an habitual violent felony offender be vacated. It is not necessary that Elmer be present for this sentence modification.
WOLF, KAHN and LAWRENCE, JJ„ CONCUR,
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Donnie Smith v. State, 742 So. 2d 352 (Fla. 5th DCA 1999)…ave occurred prior to sentencing for the offense for which a habitual sentence is sought to be imposed. Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997). See also Hall v. State, 738 So. 2d 374, 1999 WL 410314 (Fla. 1st DCA 1999); Elmer v. State, 732 So. 2d 21 (Fla. 1st DCA 1999), § 775.084(5), Fla. Stat. (1997). Subsection (5) was added to the statute in 1993 after the supreme court held that sequential convictions were not required by the habitual offender statute. State v. Barnes, 595 So. 2d 22 (Fla.19…
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Wendall Jermaine Hall v. State, 738 So. 2d 374 (Fla. 1st DCA 1999)…e merits, it is clear that a habitual violent felony offender sentence predicated in part on an offense which did not occur until after the offense for which the habitual violent felony offender sentence was imposed cannot stand. See Elmer v. State, 732 So. 2d 21 (Fla. 1st DCA 1999). See also Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997) (reversing habitual felony offender sentence imposed for offense antedating predicate offense). The statute provides: In order to be counted as a prior felony for pu…
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Cobb v. State, 741 So. 2d 1257 (Fla. 3d DCA 1999)…PER CURIAM. Affirmed. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Elmer v. State, 732 So. 2d 21 (Fla. 1st DCA 1999); Perez v. State, 717 So. 2d 605 (Fla. 3d DCA 1998); Cohen v. State, 581 So. 2d 926 (Fla. 3d DCA 1991), review denied, 592 So. 2d 679 (Fla.1991); §§ 921.001(6),(8), Fla. Stat., (1995).…
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- Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997)