VICTOR L. SANDERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Victor Sanders was convicted of lewd and lascivious conduct in the presence of a child. The appellate court affirmed his conviction but reversed his sentence as a habitual felony offender because the trial court lacked sufficient record evidence to impose the enhancement.
The trial court's habitual felony offender sentence must be reversed because the State failed to provide the necessary record evidence required by statute. Specifically, the State must prove: (1) two or more prior felony convictions; (2) that the current felony occurred while the defendant was serving a prison sentence or lawfully imposed supervision, or within five years of the prior conviction or release from prison or supervision. Here, the two convictions offered were not within the five-year window, no release dates were provided, and references to a 1997 burglary conviction lacked any evidentiary support.
[1] A trial court must have record evidence to support a finding that a defendant qualifies for habitual felony offender sentencing.
[2] To impose habitual felony offender sentencing, the State must present record evidence of the date of the current felony offense, the date of the last prior felony convict…
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Join FLexlaw to unlock all legal intelligence“Before the trial court may impose a habitual felony offender sentence, it must find, based on record evidence, that the defendant has been previously convicted of any combination of two or more felonies and that the current felony occurred either (a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a prior felony conviction; or (b) within five years from the date of conviction for the defendant's last prior felony or within five years from the date of the defendant's release from prison or supervision for a prior felony offense.”
Establishes the statutory requirements for imposing a habitual felony offender sentence under Florida law.
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Join FLexlaw to unlock all legal intelligenceSanders was convicted of lewd and lascivious conduct in the presence of a child on January 14, 1999. At sentencing, the trial court imposed a habitual…
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PARKER, Judge.
Victor L. Sanders appeals the judgment and sentence imposed after a jury found him guilty of lewd and lascivious conduct in the presence of a child. We affirm Sanders’ conviction without discussion. However, we reverse Sanders’ sentence and remand for resentencing because the trial court sentenced him as a habitual felony offender without the necessary proof.
Before the trial court may impose a habitual felony offender sentence, it must find, based on record evidence, that the defendant has been previously convicted of any combination of two or more felonies and that the current felony occurred either (a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a prior felony conviction; or (b) within five years from the date of conviction for the defendant’s last prior felony or within five years from the date of the defendant’s release from prison or supervision for a prior felony offense. See § 775.084(l)(a), Fla. Stat. (1999).
Thus, the State must provide record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last felony conviction. See Lowenthal v. State, 699 So. 2d 319, 320 (Fla. 2d DCA 1997).
In this case, the State offered into evidence certified copies of a 1987 felony conviction for battery on a law enforcement officer and a 1991 conviction for lewd and lascivious act in the presence of a child. The current offense, which took place on January 14, 1999, did not occur within five years of the date of either of these prior felony convictions. The State presented no evidence as to when Sanders was released from prison or other supervision for either of these offenses. Therefore, these convictions, standing alone, are not sufficient to qualify Sanders for habitual felony offender sentencing.
There are some references in the transcript of the sentencing hearing to a 1997 conviction for burglary of a structure. There are also some references to Sanders being on probation for the 1997 offense at the time of the current offense.
However, all of these references were made during argument by the prosecutor. None of these references were substantiated by record evidence. It appears from the transcript that the trial court was looking at the court file from this 1997 case during the sentencing hearing.
However, the State did not request that any information from that court file be admitted into evidence.
Thus, nothing in the record establishes the date of the alleged burglary or whether Sanders was actually convicted. Absent some record evidence of the date of the alleged burglary, whether Sanders was convicted, and what, if any, sentence he received, these references were insufficient to support the trial court’s finding that Sanders qualified as a habitual felony offender.
Therefore, Sanders’ habitual felony offender sentence must be reversed.
Because Sanders did not object to the habitual felony offender sentence at the sentencing hearing, upon remand the State should be given the opportunity to present evidence that Sanders qualifies as a habitual felony offender. See Bellamy v. State, 712 So. 2d 409, 410 (Fla. 2d DCA 1998); Lowenthal, 699 So. 2d at 320; Davis v. State, 588 So. 2d 289, 290 (Fla. 2d DCA 1991). If the State does so, the trial court may again impose a habitual felony offender sentence.
The judgment is affirmed. The sentence is reversed and the case remanded to the trial court for a new sentencing hearing.
CAMPBELL, A.C.J., and SALCINES, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…red where State did not provide satisfactory evidence of predicate convictions); Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001) (resentencing ordered after State failed to present copies of defendant’s judgments and sentences); Sanders v. State, 765 So. 2d 161 (Fla. 2d DCA 2000) (resentencing ordered where State presented no evidence as to date defendant was released from prison for prior offenses); Freeman v. State, 773 So. 2d 110 (Fla. 5th DCA 2000) (noting that resentencing had been ordered after State…
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Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001)…m the date of conviction for the defendant’s last prior felony or within five years from the date of the defendant’s release from prison or supervision for a prior felony offense. See § 775.084(1)(a)2.a., Fla.Stat. (1999); see also Sanders v. State, 765 So. 2d 161 (Fla. 2d DCA 2000). Thus, the state must provide record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for…
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Mitchell v. State, 780 So. 2d 282 (Fla. 4th DCA 2001)…ny or within five years from the date of the defendant’s release from prison or supervision for a prior felony offense. See Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2000) (citing § 775.084(1)(a)2.a., Fla. Stat. (1999)); see also Sanders v. State, 765 So. 2d 161, 162 (Fla. 2d DCA 2000). Thus, the State must provide record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision impose…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Calvin's Heavy Equip., Inc. v. Kirkland, 699 So. 2d 319 (Fla. 1st DCA 1997)
- N.E.R. v. State, 588 So. 2d 289 (Fla. 2d DCA 1991)
- Bellamy v. State, 712 So. 2d 409 (Fla. 2d DCA 1998)