DARREN JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darren Johnson appeals his conviction and sentence for robbery. The trial court denied his motions to suppress identification evidence and for mistrial, and sentenced him as a habitual felony offender and habitual violent felony offender. The appellate court affirmed the conviction and denial of pretrial motions but reversed the habitual offender sentence because the qualifying prior felony occurred more than five years before the current offense.
The appellate court affirmed the denial of the motion to suppress and motion for mistrial without comment. However, the court reversed Johnson's habitual offender sentence because his prior 1988 convictions occurred more than five years before the March 1, 1997 robbery, and the subsequent March 25, 1997 conviction could not serve as a qualifying prior felony since it occurred after the offense being sentenced.
[1] A defendant cannot be sentenced as a habitual felony offender or habitual violent felony offender if the felony for which the defendant is to be sentenced was committed m…
[2] A subsequent conviction cannot serve as a prior qualifying felony for habitual offender sentencing purposes.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Within 5 years of the date of the conviction of the defendant's last prior felony or other qualified offense, or within 5 years of the defendant's release from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.”
Sets forth the statutory requirement for qualifying as a habitual felony offender under Florida Statute § 775.084(1)(a)(2)(b).
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of two robberies committed in March 1997. He was first convicted of a March 25, 1997 robbery on July 30, 1998. In a subsequent t…
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STRINGER, Judge.
Appellant, Darren Johnson, challenges his conviction and sentence for robbery. Appellant alleges that the trial court erred in denying his motion to suppress a suggestive identification; denying his motion for mistrial; and in sentencing him as a habitual felony offender and habitual violent felony offender. We affirm the trial court’s denial of appellant’s motion to suppress and his motion for mistrial without further comment. We however reverse appellant’s sentence as a habitual felony offender and habitual violent felony offender. Appellant was convicted of two robberies which occurred in March of 1997. Appellant was tried separately on the two robberies. Appellant’s first conviction, which is not part of this appeal, was for a robbery committed on March 25, 1997. Appellant was convicted of this robbery on July 30, 1998. In a subsequent trial, appellant was convicted of a robbery committed on March 1, 1997. Appellant was sentenced for this robbery on January 6, 1999, as both a habitual felony offender and habitual violent felony offender to thirty years in prison with a ten-year minimum mandatory sentence. The sentence for the March 1st robbery was to run consecutive to the sentence appellant already was serving for the March 25th robbery conviction. Appellant appeals from his sentence for the March 1st robbery and argues that he does not qualify as a habitual felony offender or habitual violent felony offender. We agree.
Under section 775.084(l)(a)(2)(b), Florida Statutes (1997), to be sentenced as a habitual felony offender, the felony for which the defendant is to be sentenced must have been committed:
Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. § 775.084(l)(a)(2)(b) (emphasis added). Under section 775.084(l)(b)(2)(b), in order to be convicted as a habitual violent felony offender, the felony for which the defendant is to be sentenced must have been committed:
Within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant’s release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later. § 775.084(l)(b)(2)(b) (emphasis added).
A review of áppellant’s prior criminal record reflects that he had previously been convicted and imprisoned for two robberies committed in 1988. Appellant was released from prison on February 4, 1992. Appellant’s release from prison occurred more than five years prior to the robbery on appeal which was committed on March 1, 1997. Thus, appellant would not qualify as a habitual felony offender or habitual violent felony offender based on his 1988 robberies.
The State argues that appellant’s conviction for the March 25th robbery could be used as a qualifying felony. However, the statutes clearly state that the qualifying felony must be a prior felony. See § 775.084(1)(a)2 b, (b)2 b; Gavlick v. State, 740 So. 2d 1212, 1214 (Fla. 2d DCA 1999). Since the March 25th robbery was committed subsequent to the March 1st robbery, it was not a prior felony; and therefore, could not be used as a qualifying felony.
Although appellant did not preserve this issue with an objection at the sentencing hearing, this court can correct an illegal sentence or any serious, patent sentencing error raised for the first time on direct appeal. See Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999) (reversing erroneous imposition of habitual offender sentence even though defendant did not object during the sentencing hearing); see also Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999) (holding that a sentencing error that improperly extends a defendant’s incarceration would likely be considered a fundamental error).
We therefore affirm appellant’s conviction, and we reverse appellant’s sentence and remand this case for resentencing.
THREADGILL, A.C.J., and BLUE, J., Concur.
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Cornet v. State, 791 So. 2d 593 (Fla. 3d DCA 2001)…order denying defendant’s motion to correct illegal sentence. A crime committed subsequent to the one for which defendant is being sentenced cannot serve as a qualifying felony for purposes of imposing a habitual offender sentence. Johnson v. State, 752 So. 2d 702 (Fla. 2d DCA 2000). Thus, defendant lacks the requisite predicate offenses to qualify as a habitual violent felony offender. Furthermore, the record does not disclose predicate offenses sufficient to qualify defendant as a habitual felony offender.…
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Stephens v. State, 69 So. 3d 1084 (Fla. 2d DCA 2011)…s one prior felony, alone, they are insufficient to qualify Stephens for habitual felony offender sentencing. Additionally, the attached Virginia convictions are not prior convictions and cannot be used as a qualifying felony. See Johnson v. State, 752 So. 2d 702, 704 (Fla. 2d DCA 2000); Gavlick v. State, 740 So. 2d 1212, 1214 (Fla. 2d DCA 1999); Cornet v. State, 791 So. 2d 593, 594 (Fla. 3d DCA 2001). For the Virginia convictions to qualify as a predicate felony for enhancement purposes, the felony “must be…
Authorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999)
- Gavlick v. State, 740 So. 2d 1212 (Fla. 2d DCA 1999)