KEVIN THOMAS, PETITIONER,
v.
HARRY K. SINGLETARY, JR., SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT
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Kevin Thomas petitioned for habeas corpus relief claiming his appellate counsel was ineffective for failing to challenge habitual offender enhancements imposed on his life felony convictions. The Florida Second District Court of Appeal agreed, finding that life felonies were not subject to habitual offender enhancement under the statute in effect when Thomas committed his crimes, and that appellate counsel's failure to raise this fundamental error constituted ineffective assistance.
The court held that Thomas' convictions for armed kidnapping, armed sexual battery, and burglary of a dwelling with assault or battery while armed were life felonies not subject to habitual offender enhancement under the statute in effect at the time of the crimes. Accordingly, appellate counsel was ineffective for failing to raise this fundamental error on direct appeal, which could have been raised even without objection below.
[1] Life felonies are not subject to enhanced punishment under the habitual offender statute in effect at the time of the commission of the crimes if the statute has not been…
[2] Sentences imposed as a habitual offender on convictions for life felonies are illegal if the habitual offender statute in effect at the time of the offenses did not apply…
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Join FLexlaw to unlock all legal intelligence“Life felonies were not subject to enhanced punishment under the habitual offender statute in effect at the time that Thomas committed the above crimes.”
Establishes the controlling legal principle that determines the illegality of the habitual offender enhancements
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Join FLexlaw to unlock all legal intelligenceThomas was convicted by jury trial of burglary of a dwelling with assault or battery while armed, armed robbery, two counts of armed kidnapping, two c…
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PER CURIAM.
Kevin Thomas has filed a petition for writ of habeas corpus alleging that his appellate counsel was ineffective. We treat it as a petition filed pursuant to Florida Rule of Appellate Procedure 9.140(j). Thomas was convicted after a jury trial of burglary of a dwelling with an assault or battery and while armed with a dangerous weapon, armed robbery, two counts of armed kidnapping, two counts of armed sexual battery, two counts of grand theft, and conspiracy to commit armed burglary. Thomas was sentenced as a habitual felony offender on all counts. Thomas alleges that the imposition of habitual offender sentences was illegal as to his convictions for burglary of a dwelling with an assault or battery and while armed with a dangerous weapon, armed kidnap-ing, and armed sexual battery, and that his appellate counsel was ineffective in not raising this issue on direct appeal. We agree.
Life felonies were not subject to enhanced punishment under the habitual offender statute in effect at the time that Thomas committed the above crimes.1 See Lamont v. State, 610 So. 2d 435 (Fla.1992). As the State properly concedes, Thomas’ convictions for armed kidnapping and armed sexual battery were not subject to habitual offender enhancement. Thomas’ conviction for burglary of a dwelling with an assault or battery and while armed with a dangerous weapon is also a life felony and was not, therefore, subject to the habitual offender statute. See Nathan v. State, 689 So. 2d 1150 (Fla. 2d DCA 1997).
Thomas’ sentences as a habitual offender to these convictions are therefore illegal. See id. At the time of his appeal, this constituted fundamental error which could be raised for the first time on direct appeal, even if it was not objected to below. See Randolph v. State, 626 So. 2d 1006 (Fla. 2d DCA 1993). Thomas’ appellate counsel accordingly was ineffective in failing to raise this issue on appeal. See Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996).
We, therefore, reverse the portion of Thomas’ burglary, kidnapping, and sexual battery sentences which adjudicate him a habitual offender.2 On remand, the trial court shall correct these sentences to eliminate the habitual offender status. Thomas’ other claims are without merit.
Petition granted in part; denied in part; case remanded.
THREADGILL, A.C.J., and FULMER and STRINGER, JJ., Concur. . The offenses occurred April 20-21, 1992. The habitual offender statute was amended effective October 1, 1995, to apply to life felonies.
. Thomas was sentenced to life as a habitual offender on these charges. We reverse only the portion of the sentence adjudicating him a habitual offender because his presumptive guideline sentence for each of these offenses was also a life sentence.
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Citator
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)
- Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996)
- Randolph v. State, 626 So. 2d 1006 (Fla. 2d DCA 1993)