EUGENE DELEVAUX, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We grant rehearing and withdraw the opinion filed February 23, 2000. As the state properly concedes, the trial court improperly sentenced defendant as an habitual violent felony offender based on the predicate offense of strong-arm robbery. The record reveals that the court withheld adjudication on that offense and sentenced defendant to probation. Defendant committed the present crime after termination of probation for the strong-arm robbery offense. Accordingly, the strong-arm robbery offense may not serve as a predicate to qualify defendant as a habitual offender. See § 775.084(2), Fla. Stat. (1993). We, therefore, vacate defendant’s sentence and remand for re-sentencing. The trial court may consider re-sentencing defendant as a habitual offender if defendant’s prior record would properly support habitualization. Otherwise, defendant must be re-sentenced under the guidelines.
The order denying the post-conviction relief motion is affirmed in all other respects.
Affirmed in part; reversed and remanded.
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Gordon v. Moore, 832 So. 2d 880 (Fla. 3d DCA 2002)…and 94-32396. We remand this matter to the trial court for resentencing. Upon resentencing, if the defendant has other prior felonies that would qualify him as a habitual offender, the State may make that showing on remand. See Delevaux v. State, 762 So. 2d 1062 (Fla. 3d DCA 2000); Williams v. State, 692 So. 2d 292, 293 (Fla. 3d DCA 1997); Olsen v. State, 691 So. 2d 17, 18 (Fla. 3d DCA 1997). Petition granted m part; remanded with directions.…
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Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003)…itual offender. See Fla. R.App. P. 9.141(b)(2)(D). On remand the State is free to introduce any other convictions which may qualify the defendant as a habitual offender. See Gordon v. Moore, 832 So. 2d 880, 881 (Fla. 3d DCA 2002); Delevaux v. State, 762 So. 2d 1062 (Fla. 3d DCA 2000). We affirm the trial court’s order with respect to the second issue. Defendant was given a ten-year mandatory minimum term under the ten-twenty-life law, because of possession of a firearm during the commission of the charged off…
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Delevaux v. State, 803 So. 2d 766 (Fla. 3d DCA 2001)…s a habitual violent felony offender. This Court vacated Delevaux’s sentence and remanded the case for re-sentencing because the predicate offense which the trial court relied upon was insufficient to support ha-bitualization. See Delevaux v. State, 762 So. 2d 1062 (Fla. 3d DCA 2000). On remand, the trial court agreed that Dele-vaux’s strong-arm robbery offense was insufficient to support habitualization and imposed an upward departure sentence based on valid departure reasons. Dele-vaux has not challenged tho…
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