JAMES K. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Smith appeals his conviction for armed robbery and enhanced 30-year sentence imposed under Florida's Prison Releasee Reoffender Act. The court affirms the sentence, holding that the state established by a preponderance of the evidence that Smith committed robbery within three years of a prior prison release, satisfying the statutory requirements for enhanced punishment.
The court affirmed Smith's enhanced 30-year sentence, holding that the state met its burden by proving Smith committed the robbery on November 20, 1997, clearly within three years of his prior sentencing on November 13, 1995. The burden was on Smith to prove exceptional facts such as that the prior conviction was overturned or he was never incarcerated.
[1] A defendant may be sentenced as a "prison releasee reoffender" if the state proves by a preponderance of the evidence that the defendant committed or attempted to commit…
[2] The burden is on the defendant to prove exceptional facts, such as a prior conviction being overturned or the defendant not having been incarcerated, to avoid enhanced pu…
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Join FLexlaw to unlock all legal intelligence“Proof by a 'preponderance' of the evidence means proof which leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence.”
Establishes the legal standard for burden of proof in prison releasee reoffender cases
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of armed robbery on November 20, 1997. The state sought enhanced punishment under section 775.082(8), Florida Statutes, producing …
The full statement of facts, procedural history, and disposition for this case are member content.
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Smith appeals from his judgment and sentence for armed robbery,1 for which he received enhanced punishment (a thirty-year term in prison) under section 775.082(8), Florida Statutes (1997). He argues on appeal that the state failed to prove that he was a “prison releasee reof- fender” for purposes of enhanced punishment, pursuant to that section. We affirm, but we certify conflict and the same question on the constitutionality of the Prison Releasee Reoffender Act that we have previously certified. See Richardson v. State, 748 So. 2d 1042 (Fla. 5th DCA 1999), rev. granted, Case No. 96,764, 751 So. 2d 1253 (Fla. Jan. 6, 2000); Robinson v. State, 742 So. 2d 863 (Fla. 5th DCA 1999); Gray v. State, 742 So. 2d 805 (Fla. 5th DCA 1999), rev. granted, Case No. 96,765, 751 So. 2d 1252 (Fla. Jan. 18, 2000); Moon v. State, 737 So. 2d 655 (Fla. 5th DCA 1999), rev. granted, Case No. 96,459, 751 So. 2d 1253 (Fla, Jan. 6, 2000); Cook v. State, 737 So. 2d 569 (Fla. 5th DCA 1999).
Section 775.082(8), Florida Statutes (1997) provides in part:
(8)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
* * *
g. Robbery;
within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor. 2. If the state attorney determines that a defendant is a prison releasee reoffen-der as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
b. For a felony of the first degree, by a term of imprisonment of 30 years; ...
Smith’s sentencing scoresheet resulted in a sentencing range under the guidelines of 97 months (8.08 years) to 161.7 months (13.4 years) in state prison. The state objected to a guidelines sentence noting its intent to sentence Smith as a prison re-leasee reoffender. It produced a certified copy of a case in which Smith was sentenced on November 13,1995 to 30 months incarceration with credit for time served. The robbery for which he was found guilty in this case took place on November 20, 1997.
Defense counsel argued that the state failed to prove the conviction had not been overturned or that the defendant was in fact ever incarcerated. Defense counsel also argued the state failed to show Smith’s date of release from prison so as to be able to calculate whether he reof-fended within three years of having been • released from prison.
Proof by a “preponderance” of the evidence means proof which leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence. Department of Health and Rehabilitative Services v. M.B., 701 So. 2d 1155 (Fla.1997); Walls v. State, 641 So. 2d 381 (Fla.1994), cert, denied. 513 U.S. 1130, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); State v. Edwards, 536 So. 2d 288 (Fla. 1st DCA 1988).
In this case, the state showed Smith committed this new armed robbery on November 20, 1997, clearly within three years of the time he had been sentenced for the prior crime. Logically, it is not possible for Smith to have served any time for the prior crime and then had the required three years transpire before committing the crime in this case. We agree that had the prior crime been overturned or had he not been incarcerated in prison for that crime, the enhanced punishment statute would not be applicable. But the burden of showing those exceptional facts were on Smith. AFFIRMED; CONFLICT and QUESTION CERTIFIED.
PETERSON and GRIFFIN, JJ„ concur. . § 812.13(1) and (2)(a), Fla. Stat. (1997).
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Citator
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Ashley v. State, 925 So. 2d 1117 (Fla. 5th DCA 2006)…Robinson v. State, 907 So. 2d 1284, 1287 (Fla. 2d DCA 2005). “Proof by a ‘preponderance’ of the evidence means proof which leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence.” Smith v. State, 753 So. 2d 703, 704 (Fla. 5th DCA 2000) (citing Dep’t of Health & Rehab. Servs. v. M.B., 701 So. 2d 1155 (Fla.1997); Walls v. State, 641 So. 2d 381 (Fla.1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); State v. Edwards, 536 So. 2d 288 (Fl…
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Smith v. State, 787 So. 2d 830 (Fla. 2001)…LEWIS, J. We have for review Smith v. State, 753 So. 2d 703 (Fla. 5th DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Smith challenges his sentence under the Prison Releasee Reoffender Act (the “Act”) on several grounds, all of which have been addressed by this Court. See Grant v. State…
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Brown v. State, 789 So. 2d 366 (Fla. 2d DCA 2001)…affidavit from the Department of Corrections showing Brown’s release date. We agree with the Fifth District that the State need only show that a defendant qualifies as a prison releasee reoffender by a preponderance of the evidence. Smith v. State, 753 So. 2d 703 (Fla. 5th DCA 2000). Once it makes that showing, the burden shifts to the defendant to prove exceptional facts, such as an overturned conviction, that would negate his status as a prison releas-ee reoffender. Brown did not meet his burden. [*368] St…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Walls v. State, 641 So. 2d 381 (Fla. 1994)
- Dep't of Health & Rehabilitative Servs. v. M.B., 701 So. 2d 1155 (Fla. 1997)
- State v. Edwards, 536 So. 2d 288 (Fla. 1st DCA 1988)
- Holley v. State, 742 So. 2d 805 (Fla. 1st DCA 1998)
- Dehler v. Ohio, 513 U.S. 1130 (U.S. 1995)
- Kersh v. Huntington Banks of Mich., 513 U.S. 1130 (U.S. 1995)
- Moon v. State, 737 So. 2d 655 (Fla. 5th DCA 1999)
- Richardson v. State, 748 So. 2d 1042 (Fla. 5th DCA 1999)
- Hayes v. State, 748 So. 2d 1042 (Fla. 3d DCA 1999)
- Hernando Cnty. v. Rodger L. Anderson and Hal K. Yeager, 737 So. 2d 569 (Fla. 5th DCA 1999)