CURTIS N. PUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was insufficient to sentence the appellant as a habitual offender because the state failed to prove he met the statutory criteria regarding prior violent felony convictions and release dates. The conviction is affirmed, but the sentence is reversed.
[1] A conviction for possession of marijuana with intent to sell will be affirmed if the defendant's sole meritorious issue concerns sentencing as a habitual offender and tha…
[2] A defendant cannot be sentenced as a habitual violent felony offender unless the state proves the defendant was convicted of an enumerated violent felony or released from…
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of possession of marijuana with intent to sell. The state sought to sentence him as a habitual offender based on prior con…
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CAMPBELL, Acting Chief Judge.
Appellant challenges his judgment and sentence for possession of marijuana with intent to sell. We find merit only in appellant’s third issue regarding the sentencing as a habitual offender and affirm his conviction without discussion.
The evidence before us is insufficient to show that appellant met the criteria set forth in section 775.084(l)(b), Florida Statutes (1997), that appellant was convicted of an enumerated violent felony or has been released from a sentence for an enumerated violent felony within five years from the commission of the instant offense. The reeord reveals that appellant was convicted of grand theft in 1984 (eighteen-month sentence); attempted armed robbery and felon in possession of a firearm in 1986 (Case No. 85-11552 — two-year sentence; consecutive to Case No. 85-11553); armed robbery in 1986 (Case No. 85-11553— four-year sentence); and dealing in stolen property in 1989 (six-year sentence). The instant offense was committed on February 2, 1998. While there does appear to be a discrepancy in the judgment and sentence in Case No. 85-11552, it does not alter our conclusion that appellant’s sentence as a habitual violent felony offender must be reversed.
Although defense counsel requested a continuance and, in effect, objected to sentencing appellant as a habitual offender, he did so on the wrong basis. He conceded that the State had certified copies of appellant’s convictions in Case Nos. 85-11552 and 85-11553, without arguing whether appellant was released from custody for those crimes within five years of his commission of the instant crime. Therefore, on remand, the State shall be given the opportunity to prove that appellant meets the requirements of either a habitual violent felony offender or habitual felony offender under the statute. See Kerney v. State, 605 So. 2d 159 (Fla. 2d DCA 1992); Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991).
Affirmed in part; reversed in part and remanded.
PARKER and WHATLEY, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Orrin Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991)
- Kerney v. State, 605 So. 2d 159 (Fla. 2d DCA 1992)