TORY A. MORSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Morss was convicted of being a felon in possession of a firearm and sentenced as an habitual offender to 25 years. While affirming the conviction, the court reversed the habitual offender sentence because the state failed to provide certified copies of prior convictions when objected to at sentencing.
The court reversed the habitual offender sentence, holding that when a defendant objects to the habitual offender enhancement, the state must provide copies of the qualifying prior convictions to establish the requisite statutory elements, including the dates of conviction and release from prison or supervision, and that neither the prior convictions nor the current offense were drug-related violations.
[1] A defendant's conviction for a felony offense will be affirmed, but a sentence as an habitual felony offender may be reversed if the state fails to present requisite proo…
[2] To impose a habitual felony offender sentence, the state must present record evidence demonstrating that the defendant has been convicted of at least two prior felonies a…
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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 the state must prove for a habitual felony offender sentence.
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Join FLexlaw to unlock all legal intelligenceAppellant was found guilty of second-degree felony possession of a firearm by a convicted felon. At trial, appellant admitted to four prior felony con…
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PLEUS, J.
Appellant was found guilty of the second degree felony of being a convicted felon in possession of a firearm. He was sentenced to 25 years incarceration as an habitual felony offender. While we affirm his conviction, we reverse his habitual offender sentence because requisite proof of his qualifications as an habitual offender was not presented.
At trial, the appellant admitted that he had had four prior felony convictions. At sentencing, the state attorney gave the case numbers of each of the convictions and introduced a presentence investigation report (PSI) prepared by the Department of Corrections. Within that report were highlighted four felony convictions. Although appellant did not dispute that he had four prior felony convictions, he nonetheless asserted that the state had failed to meet its burden of showing he was an habitual offender because it failed to pres ent copies of his judgments and sentences.
The trial court overruled appellant’s objection, noting that he had testified at trial that he was guilty of four felony convictions and that the PSI presented by the state likewise showed he had four felony convictions.
In Boyd v. State, 776 So. 2d 317, 318 (Fla. 4th DCA 2001), the court noted:
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(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 the last felony conviction. See Lowenthal v. State, 699 So. 2d 319, 320 (Fla. 2d DCA 1997).
Although the appellant in the instant case conceded he had committed prior felonies, he did not concede that the felony for which he is being sentenced was committed within five years of his last felony conviction, or within five years of his release from prison or supervision for a felony offense. § 775.084, Fla. Stat. (2000).
The state also had the obligation of showing that neither the instant offense nor either of the prior offenses being used to habitualize is a “violation of s. 893.13 relating to the purchase or the possession of a controlled substance.” § 775.084(l)b.3.; c.f. Eutsey v. State, 383 So. 2d 219, 226 (Fla.1980) (state not obligated to prove prior convictions set aside or pardoned; rather, such are affirmative defenses).
Given the objection made by the appellant, the state should have provided copies of appellant’s qualifying convictions. Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994) (“because copies of the convictions were not included in this record, we are unable to discern whether factors supporting habitualization existed”); Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999); c.f Torres v. State, 751 So. 2d 701 (Fla. 3d DCA 2000) (failure to introduce certified copies of pri-or convictions harmless where no objection made).
We accordingly reverse the sentence imposed and remand for resentencing. As in Boyd, the trial court, on remand, should permit the state to present substantiated proof of appellant’s qualifications as an habitual offender. SENTENCE REVERSED; REMANDED.
THOMPSON, C.J., and PETERSON, J., concur.
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…ld that the State could not present new evidence on remand. It certified conflict with several decisions from other districts: Wilson v. State, 830 So. 2d 244 (Fla. 4th DCA 2002); Cameron v. State, 807 So. 2d 746 (Fla. 4th DCA 2002); Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So. 2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So. 2d 410 (Fla. 1st DCA 1997). We have jurisdiction to resolve the certified conflict. See art…1 / 2
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Ransom Louis Collins v. State, 893 So. 2d 592 (Fla. 2d DCA 2004)…ve adopted on this issue is in conflict with decisions of the First District, the Fourth District, and the Fifth District. See Wilson v. State, 830 So. 2d 244 (Fla. 4th DCA 2002); Cameron v. State, 807 So. 2d 746 (Fla. 4th DCA 2002); Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So. 2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997); Brown v. State, 701 So. 2d 410 (Fla. .1st DCA 1997). We therefore certify direct conflict with Wilson, Cameron, Morss,…
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Walker v. State, 988 So. 2d 6 (Fla. 2d DCA 2007)…. 2d DCA 1996). As we did in both Walker and Collins, we certify that our decision is in direct conflict with the decisions in Wilson v. State, 830 So. 2d 244 (Fla. 4th DCA 2002); Cameron v. State, 807 So. 2d 746 (Fla. 4th DCA 2002); Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So. 2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So. 2d 410 (Fla. 1st DCA 1997). We now add to this list Rich v. State, 814 So. 2d 1207 (Fla. 4t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001)
- Calvin's Heavy Equip., Inc. v. Kirkland, 699 So. 2d 319 (Fla. 1st DCA 1997)
- Sanders v. State, 765 So. 2d 161 (Fla. 2d DCA 2000)
- Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999)
- Green v. State, 647 So. 2d 274 (Fla. 2d DCA 1994)
- Torres v. State, 751 So. 2d 701 (Fla. 3d DCA 2000)