FREDERICK JEROME JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Jerome Johnson appeals the summary denial of his motion to correct an illegal sentence, arguing that his habitual violent felony offender enhancement was improper because the prior convictions used for enhancement were subject to withheld adjudication and community control. The court reverses and remands, finding Johnson stated a facially sufficient claim requiring the trial court to determine whether the record supports his allegations.
Johnson's sentence enhancement was improper because prior convictions for which adjudication was withheld and the offender was on community control cannot be used for sentence enhancement. The trial court's reasoning was flawed because it focused on the status of the new offense rather than the status of the prior convictions used for enhancement.
[1] A habitual violent felony offender sentence is illegal if the prior convictions used for enhancement did not qualify as predicate offenses.
[2] Prior convictions for which adjudication was withheld and the offender was on community control at the time of the new offense cannot be used for sentence enhancement.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“although prior convictions for which offender is on probation at time of new offense can be used for enhancement, prior convictions where adjudication was withheld and offender is on community control cannot”
Establishes the legal rule that prior convictions with withheld adjudication and community control status cannot be used for sentence enhancement
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Join FLexlaw to unlock all legal intelligenceJohnson was sentenced to twenty years in prison as a habitual violent felony offender for armed robbery, with a fifteen-year minimum. At sentencing, t…
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[*1086] NORTHCUTT, Judge.
Frederick Jerome Johnson appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He states that he was sentenced to twenty years in prison as a habitual violent felony offender for his conviction of armed robbery, with a minimum sentence of fifteen years. The habitual violent felony offender sentence is illegal, Johnson claims, because he did not have prior convictions that qualified as predicate offenses for purposes of enhancement under section 775.084, Florida Statutes (1995). Based on the record before us, we reverse.
In his motion, Johnson asserted that at the time of his sentence in the instant case he had prior convictions in case numbers 92-16163, 92-17139 and 93-1524. He stated that he received sentences of community control for those prior offenses and that adjudication was withheld. He further alleged that at the time of the instant offense he was still on community control on those charges. Consequently, he claimed the trial court improperly enhanced his sentence in reliance on those convictions. See Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995) (stating although prior convictions for which offender is on probation at time of new offense can be used for enhancement, prior convictions where adjudication was withheld and offender is on community control cannot).1
Although the circuit court attached portions of the record to its order denying Johnson’s motion, the record attachments do not conclusively refute his claim. The circuit court reasoned that Johnson’s motion lacked merit because he was not on community control for the new armed robbery conviction. But Johnson’s claim turns on the status of the prior convictions used for enhancement, not the status of the new offense for which he received the enhanced sentence. See id. Because Johnson stated a facially sufficient claim, we reverse and remand with directions to determine whether the record supports his allegation. If so, the court shall resen-tence Johnson accordingly; if not, the court shall attach to its order portions of the record that refute Johnson’s claim.
Reversed and remanded.
PARKER, A.C.J., and WHATLEY, J„ Concur. . Section 775.084(2), Florida Statutes (2000), now treats as prior convictions offenses for which the offender was placed on community control and adjudication was withheld.
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McCLELLAN v. State, 819 So. 2d 946 (Fla. 2d DCA 2002)…lellan should have raised the issue on direct appeal. The trial court was incorrect. This issue is cognizable in a rule 3.800(a) motion if the error can be determined from the record. See Bover v. State, 797 So. 2d 1246 (Fla.2001); Johnson v. State, 795 So. 2d 1085 (Fla. 2d DCA 2001). Our record does not contain any sentencing documents. We reverse and remand for the trial court to determine whether the record supports McClellan’s allegation. In McClellan’s second claim, he alleged that the trial court withh…
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Alloway v. State, 807 So. 2d 187 (Fla. 1st DCA 2002)…te, 797 So. 2d 1246 (Fla.2001). We therefore reverse and remand for the trial court to consider whether it is apparent from the face of the record that appellant did not have the requisite predicate felonies as a matter of law. See Johnson v. State, 795 So. 2d 1085 (Fla. 2d DCA 2001); Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995); Overstreet v. State, 629 So. 2d 125 (Fla.1993). BOOTH, MINER, KAHN, JJ., concur.…
Authorities Cited
- Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)