BRUCE MCCRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bruce McCray appealed his habitual offender sentence imposed upon revocation of probation. The court affirmed the sentence in one case but reversed and remanded as to the second case because the state failed to provide proper written notice of its intent to seek a habitual offender enhancement.
The court affirmed the habitual offender sentence in the case where proper notice was given, but reversed and remanded the sentence in the second case because the state failed to provide the required written notice of its intent to habitualize prior to accepting the plea.
[1] A trial court may impose a habitual offender sentence upon revocation of probation if the defendant was previously habitualized by the original court and the suspended se…
[2] A defendant must receive written notice of the state's intent to seek habitual offender status prior to the court accepting a plea.
Previewing 2 of 4 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“upon revocation of probation a trial court can sentence a defendant to prison as a habitual offender where the original court habitualized the defendant, but suspended the sentence and imposed a period of probation consistent with a habitual offender sentence”
Establishes that habitual offender sentences can be imposed upon probation revocation if the original sentencing court habitualized the defendant
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Join FLexlaw to unlock all legal intelligenceMcCray was charged in two separate cases and entered guilty pleas. The state filed notice to sentence him as a habitual offender in one case only. He …
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PER CURIAM.
We grant in part and deny in part the motion for rehearing, withdrawing our pri-or opinion and substituting the following in its place.
Appellant challenges his sentence, claiming that the trial court erred in imposing a habitual offender sentence as a result of a violation of probation. We disagree and affirm.
Appellant was charged with two offenses in two separate informations. The state filed a notice to sentence him as a habitual offender in one of the cases. Upon entering a plea of guilty as to both charges, appellant was sentenced to probation for thirty years as a habitual offender on each charge, the sentences to run concurrently.
During the period of probation appellant robbed several stores, resulting in his probation being revoked. At the subsequent sentencing hearing, appellant was sentenced to twenty-five years for one of the underlying cases and ten years for the other case to run concurrently, based on the fact that appellant had been habitual-ized by the original judge.
In Welling v. State, 748 So. 2d 314, 315-16 (Fla. 4th DCA 1999), this court held that upon revocation of probation a trial court can sentence a defendant to prison as a habitual offender where the original court habitualized the defendant, but suspended the sentence and imposed a period of probation consistent with a habitual offender sentence. Thus, appellant’s sentence pursuant to the habitual offender statute was proper. Appellant also points out that although he was given a habitual offender sentence in both case no. 90-16281 and 91-320, the state only filed a notice to seek an enhanced sentence under the habitual offender statute in case no. 90-16281. According to appellant, this is contrary to the ruling announced in Ashley v. State, 614 So. 2d 486, 490 (Fla.1993). We agree and reverse.
In Ashley, the supreme court held that the defendant must be given written notice of the state’s intent to habitualize prior to the court accepting a plea. See id. The purpose of requiring written notice is to enable the defendant to prepare for the hearing. This allows a defendant to enter into a plea in a knowing and intelligent manner. See Massey v. State, 609 So. 2d 598, 600 (Fla.1992).
In the present case, the state failed to provide appellant notice that it was also seeking to habitualize him in case no. 91-320. Therefore, the trial court was required to impose a guideline sentence as to that case.
Affirmed in part, reversed in part and remanded for further proceedings as to the sentence entered in case no. 91-320.
WARNER, C.J., STONE and HAZOURI, JJ., concur.
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Citator
Cited By
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McFADDEN v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000)…, 770 So. 2d 163 (Fla. 2000), we clarified that in order to be sentenced as an habitual offender upon revocation of probation, a probationer must have received an habitual offender sentence at the original sentencing hearing. Accord McCray v. State, 765 So. 2d 82, 83 (Fla. 4th DCA), rev. denied, No. SC00-1217, 776 So. 2d 276 (Fla. Nov.3, 2000). Because McFadden was initially sentenced to only two years probation, his original sentence fell short of an habitual offender term. Thus, McFadden cannot be sentenc…
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Weal v. State, 824 So. 2d 262 (Fla. 4th DCA 2002)…on would be limited to the issues of whether the required prior .convictions for an enhanced sentence existed and were proven, and whether appellant was given sufficient notice of the state’s intent to seek an enhanced sentence. See McCray v. State, 765 So. 2d 82 (Fla. 4th DCA), rev. denied, 776 So. 2d 276 (Fla.2000). POLEN, C.J., STEVENSON and GROSS, JJ., concur.…
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Massey v. State, 609 So. 2d 598 (Fla. 1992)
- Welling v. State, 748 So. 2d 314 (Fla. 4th DCA 1999)