MICHAEL MOMENT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Moment appealed his conviction and sentence for a drug offense. The appellate court initially affirmed but upon rehearing held that Moment's testimony disputing prior convictions preserved the issue for review, requiring the state to prove the accuracy of the prior record used in sentencing.
Moment's testimony disputing the prior convictions was sufficient to preserve the issue for appellate review. The burden is on the state to provide proof corroborating alleged prior convictions used for sentencing, and because the prior records were not in the record, the court could not determine if the state met its burden. The conviction was affirmed regarding the drug testing issue because the record did not contain the probation order and the deficiency was waived when the appellee pointed it out and the appellant did not move to supplement the record.
[1] A defendant's testimony disputing the accuracy of prior convictions used for sentencing is sufficient to preserve the issue for appellate review.
[2] Where a defendant disputes the accuracy of prior convictions used for sentencing, the burden is on the state to provide proof corroborating the alleged prior record.
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Join FLexlaw to unlock all legal intelligence“Where a defendant disputes the accuracy of prior convictions used for sentencing purposes, the burden is on the state to provide proof corroborating the alleged prior record.”
Establishes the burden of proof standard when sentencing prior convictions are disputed
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Join FLexlaw to unlock all legal intelligencePrior to a revocation hearing, the trial court judicially noticed prior case files indicating Moment had been convicted of delivery of a controlled su…
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POLEN, J.
We initially per curiam affirmed appellant’s conviction and sentence because we, as did the trial court, believed he waived any objection to the correctness of the scoresheet used at sentencing. Prior to the revocation hearing, the court had judicially noticed the content of prior case files which indicated he had been convicted of delivery of a controlled substance. While he did not object at this time, later at sentencing he testified that he had previously been convicted of possession, not delivery. On further review, we hold that this testimony was sufficient to have preserved this issue for our review. See Hubbs v. State, 661 So. 2d 1282, 1283 (Fla. 4th DCA 1995).
Where a defendant disputes the accuracy of prior convictions used for sentencing purposes, the burden is on the state to provide proof corroborating the alleged prior record. Banks v. State, 610 So. 2d 514, 517 (Fla. 1st DCA 1992), rev. denied, 618 So. 2d 208 (Fla.1993). Because the instant record does not contain these prior records, we are unable to determine whether the state met its burden. Accordingly, we reverse appellant’s sentence and remand this case for the trial court to make this determination.
Appellant also sought reversal of his conviction by arguing that there was no condition in the order requiring him to submit to random drug testing. However, we affirm his conviction under the principles of Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979), because the record does not contain a copy of the subject probation order. Although we are cognizant of Florida Rule of Appellate Procedure 9.200(f)(2), the state in its answer brief specifically pointed out that the order was not contained in the record. “Where, as here, the appellees point out the deficiency in the record in their brief and appellants do not move to supplement the record, this court takes the position that compliance with rule 9.200(f)(2) has been waived.” Cirillo v. Davis, 732 So. 2d 387, 389 (Fla. 4th DCA 1999).
AFFIRMED in part; REVERSED and REMANDED for further proceedings.
FARMER and SHAHOOD, JJ., concur.
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Citator
Cited By (12 total)
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FAY v. Craig, 99 So. 3d 981 (Fla. 5th DCA 2012)…e that the “opportunity” to supplement the record afforded by rule 9.200(f)(2) is waived or deemed satisfied when a litigant fails to promptly seek to supplement the record after notice is given of a perceived deficiency. See, e.g., Moment v. State, 773 So. 2d 577 (Fla. 4th DCA 2000) (stating appellant waived right to supplement record by failing to seek to supplement after deficiency pointed out in answer brief); Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999) (same); Kauffmann v. Baker, 392 So. 2d 13 (…
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Levon Wilson v. State, 830 So. 2d 244 (Fla. 4th DCA 2002)…y of the information, the state is required to provide corroborating evidence establishing both the historical fact of the predicate convictions and the identity of the appellant as the person named in those judgments of conviction. Moment v. State, 773 So. 2d 577 (Fla. 4th DCA 2000); Brown v. State, 701 So. 2d 410 (Fla. 1st DCA 1997). Therefore, the state’s failure to provide authenticated fingerprint analysis to prove that the person named in the certified convictions was Wilson is reversible error. Upon…
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Horn v. State, 775 So. 2d 1007 (Fla. 3d DCA 2001)…correct calculation in his sentencing guidelines scoresheet. We need not address that claim because defendant was sentenced as a habitual offender and the guidelines scoresheet is irrelevant. See § 775.084(4)(g), Fla.Stat. (1995); McKnight v. State, 773 So. 2d 577 (Fla. 3d DCA 2000). Defendant argues that his ten-year sentences exceed the legal maximum, but that is not so. Ten years is the legal maximum for a habitualized third degree felony. § 775.084(4)(a)3., Fla.Stat. (1995). Affirmed.…
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
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999)
- Perves Banks v. State, 610 So. 2d 514 (Fla. 1st DCA 1992)
- Prentiss Hubbs v. State, 661 So. 2d 1282 (Fla. 4th DCA 1995)