MARK JOSEPH OLIVEIRA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that enhancing a sentence under both a specific offense enhancement statute and the habitual felony offender statute constitutes improper double enhancement.
The defendant was convicted of possession of cocaine with intent to sell and battery on a law enforcement officer. His sentence for battery on a law e…
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PER CURIAM.
The Defendant appeals his convictions and sentences for possession of cocaine with intent to sell and battery on a law enforcement officer. We affirm the convictions and sentences in all respects, with the exception that we reverse the sentence for battery on a law enforcement officer and remand for re-sentencing.
The Defendant asserts that the offense enhancement from battery, a first degree misdemeanor, to battery on a law enforcement officer, a third degree felony, in conjunction with a ten-year sentence under the habitual felony offender statute has resulted in improper double enhancement. We agree.
The Florida Supreme Court has recently explained, “[sjection 784.07 ... is an enhancement statute rather than a statute creating and defining any criminal offense.” Merritt v. State, 712 So. 2d 384, 385 (Fla.1998). In the present case, the Defendant’s offense was reclassified pursuant to section 784.07(2)(b). In addition, his sentence was enhanced under the habitual felony offender statute. Because section 784.07 is itself an enhancement statute, the Defendant has been subjected to double punishment by also having his sentence enhanced under the habitual offender statute. See, e.g., Gayman v. State, 616 So. 2d 17, 18 (Fla.1993) (stating that defendants cannot receive multiple punishments for the same offense). Accordingly, we affirm all the Defendant’s convictions and sentences in all respects, with the exception that we reverse the sentence for battery on a law enforcement officer and remand for re-sentencing.
AFFIRMED in part, REVERSED in part, and REMANDED.
GUNTHER, FARMER and KLEIN, JJ., concur.
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Cedrick E. Spann v. State, 772 So. 2d 38 (Fla. 4th DCA 2000)…KLEIN, J. Appellant was convicted of battery on a law enforcement officer and challenges his sentence as a prison releasee reoffender, arguing that there was a double enhancement of his penalty and that under Oliveira v. State, 751 So. 2d 611 (Fla. 4th DCA 1999), this constituted double jeopardy. We now recognize that we were wrong in Oliveira and recede from that opinion. In Oliveira the defendant was also convicted of battery on a law enforcement officer. Section 784.07, Florida Statu…
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King v. State, 763 So. 2d 546 (Fla. 5th DCA 2000)…uble jeopardy rights for the judge to have enhanced his sentence for battery on a law enforcement officer. The enhancement was imposed because appellant is an habitual felony offender. § 775.084, Fla. Stat. (1997). Appellant cites Oliveira v. State, 751 So. 2d 611 (Fla. 4th DCA 1999) as authority for his claim of error and he is correct in his assertion that it is directly on point. We disagree with the rationale in Oliveira and certify conflict with the decision. Oliveira holds that because the crime of Bat…
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Alfonso v. State, 761 So. 2d 1231 (Fla. 3d DCA 2000)…. State, 750 So. 2d 659 (Fla. 4th DCA 1999) on the issue of whether the double jeopardy clause precludes sentencing of a defendant as both a prison releas-ee reoffender and a habitual felony offender. We also certify conflict with Oliveira v. State, 751 So. 2d 611 (Fla. 4th DCA 1999) on the issue of whether the double jeopardy clause precludes sentencing of a defendant as either a prison releasee reoffender or an habitual violent felony offender, after the defendant’s sentence had already been enhanced pursua…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Merritt v. State, 712 So. 2d 384 (Fla. 1998)
- Dorcy Gayman v. State, 616 So. 2d 17 (Fla. 1993)