JOSEPH C. LANDRETH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that there was insufficient evidence of prior convictions to support the violent career criminal sentence.
[1] A conviction for an attempt to commit a specified offense does not satisfy the requirement of having a prior conviction for that offense for purposes of violent career cr…
[2] A sentencing error that improperly extends a defendant's incarceration or supervision is likely to be considered fundamental and may be reviewed for the first time on dir…
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Join FLexlaw to unlock all legal intelligenceThe State presented certified copies of prior convictions, but only one met the requirements for a violent career criminal sentence enhancement. The d…
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WHATLEY, Judge.
Joseph C. Landreth appeals his sentence for burglary of a dwelling.
We agree with Landreth’s argument that there was insufficient evidence of prior convictions to support his violent career criminal sentence, and we reverse. During sentencing, the State presented certified copies of convictions for the following offenses: a 1990 sexual battery; five 1995 grand thefts; a 1995 felony petit theft; and a 1995 attempted burglary of a structure.1 The sexual battery conviction is the only offense that meets the requirements for violent career criminal sentencing enhancement pursuant to sections 775.084(l)(c) and 776.08, Florida Statutes (1995).
Although the State mentioned a prior conviction for escape during the sentencing hearing, without a copy' of that conviction, the trial court could not determine whether it was a qualified offense. See Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994).
Regardless, section 775.084(l)(c) requires that the defendant have at least three prior convictions for the specified offenses.
We reject the State’s argument that Landreth waived this issue because he did not raise it in the trial court. § 924.051, Fla. Stat. (1997). See Gregory v. State, 24 Fla. L. Weekly D256, 739 So. 2d 100 (Fla. 2d DCA 1999) (holding that the erroneous imposition of a habitual offender sentence for possession with intent to sell a controlled substance is a serious, patent sentencing error that may be reviewed for the first time on direct appeal); Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999) (holding that a sentencing error that improperly extends the defendant’s incarceration or supervision would likely be considered fundamental).
Accordingly, we reverse. On remand, the trial court may again sentence Lan-dreth as a violent career criminal if he qualifies. See Hardwick v. State, 677 So. 2d 958 (Fla. 2d DCA 1996).
FULMER, A.C.J., and DAVIS, J., Concur. . A conviction for an "attempt” to commit one of the noted offenses does not meet the requirements of section 775.084(l)(c), Florida Statutes (1995).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tory A. Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001)…llant’s qualifying convictions. Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994) (“because copies of the convictions were not included in this record, we are unable to discern whether factors supporting habitualization existed”); Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999); c.f Torres v. State, 751 So. 2d 701 (Fla. 3d DCA 2000) (failure to introduce certified copies of pri- or convictions harmless where no objection made). We accordingly reverse the sentence imposed and remand for resentencing. As…
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Walters v. State, 790 So. 2d 483 (Fla. 5th DCA 2001)…bery (for which he was imprisoned until 1999) has to qualify as an enumerated felony. There is no case which directly considers whether an “attempted robbery” is a forcible felony within the meaning of section 776.08. However, in Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999), the Second District Court of Appeal observed that an “attempt” was not a qualifying offense for purposes of sentencing a defendant as a violent career criminal. In Landreth, the court found that a prior conviction for attempted b…
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Campbell v. State, 949 So. 2d 1093 (Fla. 3d DCA 2007)…on point. Since there must be further proceedings on remand, we point out that a VCC adjudication is not permissible for count 1, the offense of attempted robbery. See Walters v. State 790 So. 2d 483, 484-85, (Fla. 5th DCA 2001); Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999). [*1095] For the stated reasons, we reverse the sentencing order and remand for a new sentencing hearing at which the trial court may again consider whether to sentence the defendant as a VCC on count 2, burglary with an assault o…
Authorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999)
- Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994)
- Ramel Mungin v. State, 677 So. 2d 958 (Fla. 2d DCA 1996)
- Hardwick v. State, 677 So. 2d 958 (Fla. 2d DCA 1996)