EUGENE GRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We grant rehearing, withdraw our prior opinion, and substitute the following opinion in its place.
Appellant’s conviction for attempted sexual battery on a child and indecent assault is affirmed. We note, however, that the judgment and sentence reflect that appellant entered a plea of guilty to the charges when, in fact, appellant was found guilty after a jury trial. Therefore, we sua sponte remand to the trial court to enter a corrected judgment and sentence. Appellant need not be present for this purpose.
We reject appellant’s claim that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 435 (2000), his habitual offender sentence is unconstitutional. Apprendi does not apply to enhanced sentences based on prior convictions. See Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001).
GUNTHER, STONE and SHAHOOD, JJ., concur.
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Alonza W. Jacobs v. State, 785 So. 2d 713 (Fla. 4th DCA 2001)…PER CURIAM. AFFIRMED. See Gray v. State, 780 So. 2d 1042 (Fla. 4th DCA 2001)(rejecting claim that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), habitual offender sentence is unconstitutional — “Apprendi does not apply to enhanced sentences based on prior conviction.”)…
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Walker v. State, 790 So. 2d 1200 (Fla. 5th DCA 2001)…hat an habitual offender sentence is not subject to an Apprendi challenge. Jacobs v. State, 785 So. 2d 713 (Fla. 4th DCA 2001); Morant v. State, 785 So. 2d 665 (Fla. 3d DCA 2001); Simmons v. State, 782 So. 2d 1000 (Fla. 4th DCA 2001); Gray v. State, 780 So. 2d 1042 (Fla. 4th DCA 2001); Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001). We affirm Walker’s sentence because it is not in excess of that which he lawfully could have received as an habitual offender. AFFIRMED. SHARP, W., J., concurs. ORFINGER,…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001)