JONATHAN ADKINSON, II A/K/A JONATHAN ADKISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Illegal sentencing is an error that may be raised for the first time on direct appeal, even if the defendant did not object below or move to withdraw their plea.
Appellant pleaded no contest to habitual offender sentencing based on prior felony convictions. The predicate convictions were not sequential, which a…
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PER CURIAM.
In these consolidated cases, appellant seeks review of concurrent habitual offender sentences entered by the trial court pursuant to no contest pleas. To establish the criteria for habitual offender treatment, the State introduced evidence of prior felony convictions, all of which occurred on September 9, 1992. Appellant now argues that because the predicate convictions were not sequential, the habitual offender sentences are illegal under section 775.084(5), Florida Statutes (1997). Appellant made no objection to imposition of the sentences before the trial court nor has he moved to withdraw his pleas or correct the sentences.
On the merits, the State does not contest the non-sequentiality of the predicate convictions. Instead, the State urges us to recede from Nelson v. State, in which this court held that illegal sentencing is an error that may be raised for the first time on direct appeal. 719 So. 2d 1230 (Fla. 1st DCA 1998). Pursuant to Nelson, we reverse and again certify conflict with Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA), review granted, 718 So. 2d 169 (Fla.1998).
In case number 98-4591, we vacate the sentence and direct the trial court to resentence appellant. We also vacate the sentence in case number 98-4674. Because that case involved a negotiated plea, the State will have the option on remand to determine whether it wishes to void the plea agreement or simply to seek resentencing. See Forshee v. State, 579 So. 2d 388 (Fla. 2d DCA 1991).
REVERSED and REMANDED..
BOOTH, KAHN, and BROWNING, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wainer v. State, 798 So. 2d 885 (Fla. 4th DCA 2001)…; see Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995) (habitual offender sentence could not be based on prior convictions entered on same date; sequential convictions were required to support habitual offender status); see also Adkinson v. State, 743 So. 2d 1180 (Fla. 1st DCA 1999) (habitual offender sentences were improper where predicate convictions were not sequential). The fact that defendant’s counsel did not object during sentencing and even conceded that he qualified as a habitual felony offender d…
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Gibson v. State, 772 So. 2d 35 (Fla. 2d DCA 2000)…that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to be resentenced.... Id. at 56 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)); Adkinson v. State, 743 So. 2d 1180, 1181 (Fla. 1st DCA 1999) (vacating similar sentence and giving State options of voiding plea agreement or simply seeking re-sentencing); Williams v. State, 650 So. 2d 1054, 1055 (Fla. 1st DCA 1995) (reversing sentences, giving State option of vacat…
Authorities Cited
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Chambliss v. State, 579 So. 2d 388 (Fla. 2d DCA 1991)