JAMES MCFADDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McFadden appeals his probation revocation and subsequent 30-year habitual offender sentence. The court reversed, holding that because McFadden's original sentence was only two years probation (not an habitual offender sentence), he cannot be sentenced as an habitual offender upon probation revocation, despite his plea agreement designating him as such.
McFadden cannot be sentenced as an habitual offender upon revocation of probation because he did not receive an habitual offender sentence at his original sentencing. To be sentenced as an habitual offender upon probation revocation, a probationer must have received an habitual offender sentence at the original sentencing hearing.
[1] A prior trial court proceeding that does not result in a final determination of guilt or innocence does not bar a subsequent probation revocation hearing on double jeopar…
[2] A defendant may not be sentenced as an habitual offender upon revocation of probation unless the defendant received an habitual offender sentence at the original sentenci…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the controlling legal standard that an original habitual offender sentence is a prerequisite for habitual offender sentencing upon probation revocation.
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Join FLexlaw to unlock all legal intelligenceOn November 12, 1996, McFadden pleaded guilty to robbery with a firearm and received two years probation with habitual offender designation pursuant t…
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GROSS, J.
On November 12, 1996, James McFadden was sentenced to two years probation and designated as an habitual offender as part of a plea agreement in exchange for his guilty plea to the charge of robbery with a firearm. The sentence was well within the range permitted by the sentencing guidelines and did not constitute an habitual offender sentence. See King v. State, 681 So. 2d 1136, 1138-39 (Fla.1996).
On April 11, 1997, McFadden was charged with violating his probation. This case is McFadden’s second appeal of a trial court revoking his probation.
We earlier reversed a 1997 trial court order revoking McFadden’s probation, be cause the trial court abandoned its role as a neutral trier of fact and assisted the prosecution in the presentation of its case. See McFadden v. State, 732 So. 2d 1180 (Fla. 4th DCA 1999). On remand, another trial judge determined that McFadden violated his probation by failing to file reports and by committing petit theft. The trial court then sentenced McFadden to thirty years in prison, based on his original designation as an habitual offender. McFadden contends that the trial court erred by revoking his probation, because double jeopardy barred retrial on the violation of probation charges. However, nothing in the first violation of probation hearing qualifies as a final determination of McFadden’s innocence or guilt. See Francis v. State, 736 So. 2d 97, 99 (Fla. 4th DCA 1999); Lyles v. State, 742 So. 2d 842, 843 (Fla. 2nd DCA 1999). Therefore, we find no error in the second trial court’s decision to revoke McFadden’s probation.
McFadden’s second point on appeal contends that the trial court erred in sentencing him as an habitual offender upon revocation of his probation, since he did not receive an habitual offender sentence at his original sentencing. In Welling v. State, 748 So. 2d 314, 316 (Fla. 4th DCA 1999), rev. denied, 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 sentenced as an habitual offender upon revocation of probation, notwithstanding his plea agreement to be treated as an habitual offender. Accordingly, we reverse the trial court’s order and remand the case with instructions that McFadden be sentenced according to the sentencing guidelines.
DELL and KLEIN, JJ., concur.
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Citator
Cited By (12 total)
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Terry v. State, 808 So. 2d 1249 (Fla. 2002)…QUINCE, J. We have for review the opinion in Terry v. State, 778 So. 2d 435 (Fla. 5th DCA 2001), which certified conflict with the opinions in Yashus v. State, 745 So. 2d 504 (Fla. 2d DCA 1999),1 and McFadden v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we resolve the certified conflict by approving the decision below and disapproving McFadden to the extent it conflicts with this decision.…1 / 2
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Terry v. State, 778 So. 2d 435 (Fla. 5th DCA 2001)…sentenced to prison as a non-habitual offender followed by probation with the condition that he would be treated as an habitual offender if he violated probation.1 We recognize that there is a split of authority on this issue. In McFadden v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000), the Fourth District aligned itself with Ya-shus. The Third District recently adopted the position that we enunciate today. See Rodriguez v. State, 766 So. 2d 1147 (Fla. 3d DCA 2000). For that reason, we certify conflict with Yas…
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Herschell Newton Brown v. State, 800 So. 2d 727 (Fla. 5th DCA 2001)…PER CURIAM. AFFIRMED. See Terry v. State, 778 So. 2d 435 (Fla. 5th DCA), rev. granted, 790 So. 2d 1108 (Fla.2001). As we did in Terry, we certify conflict with McFadden v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000). THOMPSON, C.J., COBB and ORFINGER, R.B., JJ., concur.…
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
- King v. State, 681 So. 2d 1136 (Fla. 1996)
- McFADDEN v. State, 732 So. 2d 1180 (Fla. 4th DCA 1999)
- Lyles v. State, 742 So. 2d 842 (Fla. 2d DCA 1999)
- Francis v. State, 736 So. 2d 97 (Fla. 4th DCA 1999)
- Welling v. State, 748 So. 2d 314 (Fla. 4th DCA 1999)
- McCRAY v. State, 765 So. 2d 82 (Fla. 4th DCA 2000)