DAVID W. WAINER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed a habitual felony offender sentence because the prior convictions relied upon to qualify the defendant were all entered on the same date in the same sentencing proceeding, failing to meet the statutory requirement of sequential convictions. The court held that neither defense counsel's failure to object nor the later submission of an additional conviction could cure this fatal defect.
Prior convictions entered on the same date in the same sentencing proceeding do not qualify as sequential convictions necessary for habitual felony offender sentencing under Florida law. The defendant's failure to object, counsel's concession of habitual offender status, and the state's later submission of an additional conviction not relied upon at sentencing could not cure this defect.
[1] Prior convictions entered on the same date in the same sentencing proceeding do not qualify as sequential prior convictions for habitual felony offender status.
[2] A defendant's qualification as a habitual felony offender requires the state to prove sequential prior convictions, regardless of defense counsel's concessions or failure…
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Join FLexlaw to unlock all legal intelligence“These prior convictions, however, were all entered on the same date in the same sentencing proceeding and therefore do not qualify as sequential prior convictions for habitual felony offender qualification.”
Establishes the core defect in the habitual felony offender sentence—that convictions must be sequential and cannot all be entered in the same sentencing proceeding.
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Join FLexlaw to unlock all legal intelligenceDavid Wainer was sentenced as a habitual felony offender based on certified copies of prior convictions from ten separate cases. However, all of these…
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[*886] FARMER, J.
In an effort to prove that defendant qualified as a habitual felony offender, the state presented certified copies of prior convictions in ten separate cases. These prior convictions, however, were all entered on the same date in the same sentencing proceeding and therefore do not qualify as sequential prior convictions for habitual felony offender qualification. § 775.084(5), Fla. Stat. (1999); Bover v. State, 797 So. 2d 1246 (Fla.2001) (although sentencing for separate convictions arising out of unrelated crimes can take place on same day, sentences cannot be part of same sentencing proceeding to qualify for habitual felony offender sentence); see Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995) (habitual offender sentence could not be based on prior convictions entered on same date; sequential convictions were required to support habitual offender status); see also Adkinson v. State, 743 So. 2d 1180 (Fla. 1st DCA 1999) (habitual offender sentences were improper where predicate convictions were not sequential).
The fact that defendant’s counsel did not object during sentencing and even conceded that he qualified as a habitual felony offender does not save the sentence. Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001) (even though defense counsel admitted that defendant qualified as a habitual offender and did not dispute such finding in the presentence investigation report, it was the state’s burden to prove certain requirements for defendant to qualify as habitual offender). Further, the error was not cured by the state’s later submission of another nonsequential conviction entered on a separate date from the other convictions. The trial court did not rely upon this later conviction at the sentencing hearing during oral pronouncement of sentence. See Alfonso v. State, 659 So. 2d 478, 478 (Fla. 4th DCA 1995) (sentence could not be upheld because noncontemporaneous convictions not relied on at the sentencing hearing).
We are therefore required to reverse the sentence and return the case to the trial court for resentencing. On remand the state may again seek sentencing as a habitual felony offender, subject to evidence of satisfactory predicate convictions. Mitchell v. State, 780 So. 2d 282 (Fla. 4th DCA 2001).
REVERSED AND REMANDED FOR RESENTENCING.
DELL and HAZOURI, JJ., concur.
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…usly convicted of the predicate crimes); Alix v. State, 799 So. 2d 359 (Fla. 3d DCA 2001) (resentencing ordered where State did not prove that prior foreign offense was substantially similar to a section 775.084 qualifying offense); Wainer v. State, 798 So. 2d 885 (Fla. 4th DCA 2001) (resentencing ordered where State did not provide satisfactory evidence of predicate convictions); Morss v. State, 795 So. 2d 262 (Fla. 5th DCA 2001) (resentencing ordered after State failed to present copies of defendant’s judgm…
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Edison v. State, 848 So. 2d 498 (Fla. 2d DCA 2003)…imes can occur on the same day, but the sentences cannot be entered as part of the same sentencing proceeding. Bover v. State, 797 So. 2d 1246, 1250 (Fla.2001). It is the State’s burden to prove that a defendant qualifies as an HFO. Wainer v. State, 798 So. 2d 885, 886 (Fla. 4th DCA 2001). In this case, the State presented evidence that Edison was adjudicated guilty of four prior felonies on October 22, 1997, which was prior to the sentencing hearing. Although each felony had a different case number, the re…
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Cook v. State, 893 So. 2d 653 (Fla. 4th DCA 2005)…is instance the convictions were entered on two separate dates. See Ford v. State, 814 So. 2d 1121, 1122 (Fla. 4th DCA 2002) (holding three previous convictions insufficient because “there were two different dates of adjudication”); Warner v. State, 798 So. 2d 885, 886 (Fla. 4th DCA 2001) (10 prior convictions “entered on the same date in the same sentencing proceeding ... [unqualified] as sequential prior convictions for habitual felony offender qualification.”). Because the State faded to offer evidence tha…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001)
- Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995)
- Mitchell v. State, 780 So. 2d 282 (Fla. 4th DCA 2001)
- Alfonso v. State, 659 So. 2d 478 (Fla. 4th DCA 1995)
- Adkinson v. State, 743 So. 2d 1180 (Fla. 1st DCA 1999)