TOMMIE LEE GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommie Lee Gordon was convicted of cocaine delivery and sentenced as a habitual felony offender. The court affirmed the conviction but reversed the enhanced sentence because the State failed to prove that Gordon's prior convictions fell within the statutory five-year window required for habitual felony offender sentencing.
The court affirmed Gordon's conviction but reversed the habitual felony offender sentence. Gordon's Apprendi claim failed because his sentence was below the statutory maximum and recidivism exceptions apply. However, the State failed to present sufficient evidence that the predicate convictions occurred within the required statutory window.
[1] A defendant is not entitled to a jury determination of prior convictions necessary for habitual felony offender sentencing when the sentence imposed is below the statutor…
[2] Findings required under habitual felony offender statutes may fall within the recidivism exception to the Apprendi rule.
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Join FLexlaw to unlock all legal intelligence“Before a trial court may impose a habitual felony offender sentence, .... 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.”
Establishes the specific evidentiary requirements for imposing a habitual felony offender sentence
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Join FLexlaw to unlock all legal intelligenceGordon was tried by jury and convicted of delivery of cocaine. He was sentenced to four years in prison as a habitual felony offender. At sentencing, …
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STEVENSON, J.
Appellant, Tommie Lee Gordon, was tried by jury and convicted of delivery of cocaine, and sentenced to four years in prison as a habitual felony offender. We have considered, but reject without further comment, Gordon’s claims that he was entrapped as a matter of law and that improper comments of the prosecutor entitle him to a new’' trial. We reverse the habitual felony offender sentence because there was no ‘proof that the requisite prior offenses were committed during the applicable statutory window.
Gordon first argues that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), affords him the right to have a jury determine that he has the requisite predicate convictions necessary to impose a habitual felony offender sentence. Secondly, Gordon asserts that the State failed to present sufficient evidence to establish that he has the necessary predicate convictions as required under the statute. We agree with the latter of these claims and reverse Gordon’s sentence.
Gordon’s Apprendi claim must fail for two reasons. First, since Gordon’s four-year sentence was well below the statutory maximum, Apprendi has no application. See United States v. Shepard, 235 F. 3d 1295 (11th Cir.2000); United States v. Gerrow, 232 F. 3d 831 (11th Cir.2000). Second, we align ourselves with the Fifth District which has held that the findings required under the habitual felony offender statute fall within Apprendi’s “recidivism” exception and that nothing in Apprendi overruled our supreme court’s decision in Eutsey v. State, 383 So. 2d 219 (Fla.1980), rejecting the notion that a defendant was entitled to have a jury determine, beyond a reasonable doubt, the existence of the predicates necessary for imposition of a habitual felony offender sentence. See Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001); see also Jones v. State, 784 So. 2d 1111 (Fla. 2d DCA 2001).
We find merit in Gordon’s contention that the State failed to present sufficient evidence to establish that the crime for which he was being sentenced was committed either:
a. While the defendant was serving a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense; or b. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. § 775.084(l)(a)(2), Fla. Stat. (Supp.1998). Here, the prosecutor recited a series of case numbers, charges and terms of imprisonment, and defense counsel stipulated that “those, in fact, are his priors .” The stipulation did not establish that the convictions or Gordon’s release from prison or “other commitment” took place within the required five-year window. Moreover, the PSI in the instant case suffered from these same infirmities.
Accordingly, we reverse Gordon’s HFO sentence and remand for resentencing. See Boyd v. State, 776 So. 2d 317, 318 (Fla. 4th DCA 2001)(“Before a trial court may impose a habitual felony offender sentence, .... 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.”) (citations omitted); see also Mitchell v. State, 780 So. 2d 282 (Fla. 4th DCA 2001); Bellamy v. State, 712 So. 2d 409 (Fla. 2d DCA 1998).
AFFIRMED in part, REVERSED in part, and REMANDED.
POLEN and TAYLOR, JJ., concur.
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Citator
Cited By (16 total)
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Yisrael v. State, 993 So. 2d 952 (Fla. 2008)…ess record. See, e.g., Kelly v. State Farm Mut. Auto. Ins., 720 So. 2d 1145, 1146 (Fla. 5th DCA 1998) (holding that the parties stipulated to the admissibility of [*957] medical records under the business-records exception); but see Gordon v. State, 787 So. 2d 892, 894 (Fla. 4th DCA 2001) (holding that the State and defense counsel’s stipulation regarding the defendant’s release date was not sufficient to relieve the State of its burden to prove the defendant’s release date by a preponderance of the evidence)…
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McBRIDE v. State, 884 So. 2d 476 (Fla. 4th DCA 2004)…that Apprendi does not apply to recidivism statutes and entitle a defendant to have a jury determine, beyond a reasonable doubt, the existence of predicate convictions necessary for imposing a habitual felony offender sentence. See Gordon v. State, 787 So. 2d 892, 894 (Fla. 4th DCA 2001). In Gordon, we concluded that Apprendi did not overrule Eutsey v. State, 383 So. 2d 219 (Fla.1980), wherein our state supreme court rejected “the notion that a defendant was entitled to have a jury determine, beyond a reason…
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Benny Jones v. State, 791 So. 2d 580 (Fla. 1st DCA 2001)…courts that Apprendi does not apply to the enhancement of a penalty based on proof of prior criminal convictions, and therefore we affirm the denial of the appellant’s motion. See Saldo v. State, 789 So. 2d 1150 (Fla. 3d DCA 2001); Gordon v. State, 787 So. 2d 892 (Fla. 4th DCA 2001); Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001); see also McDowell v. State, 789 So. 2d 956 (Fla.2001). AFFIRMED. BARFIELD, WOLF and LEWIS, JJ., CONCUR.…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001)
- United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000)
- Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001)
- Mitchell v. State, 780 So. 2d 282 (Fla. 4th DCA 2001)
- United States v. Alphonso Shepard, 235 F.3d 1295 (11th Cir. 2000)
- Bellamy v. State, 712 So. 2d 409 (Fla. 2d DCA 1998)