DEVON STOUTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed probation revocation for burglary but remanded felony DWLS conviction for evidentiary hearing to determine whether sufficient predicate convictions exist, as one predicate offense was set aside before the original plea.
Probation revocation for burglary is affirmed, but the felony DWLS conviction must be remanded for an evidentiary hearing to determine whether sufficient prior DWLS convictions support the conviction.
[1] A felony DWLS conviction cannot support an habitual felony offender sentence if one of its predicate offenses was set aside prior to the original plea and the record is u…
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Join FLexlaw to unlock all legal intelligenceStoute's probation was revoked for burglary of a conveyance and possession of burglary tools, and for felony driving with a suspended license. One pre…
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POLEN, C.J.
In case numbers 4D00-543 and 4D00-604, the trial court revoked Stoute’s probation for burglary of a conveyance and pos session of burglary tools, and for felony driving with a suspended license (DWLS), respectively. We affirm the revocation of his probation in the burglary case because it is undisputed he subsequently drove with a suspended license. However, the state concedes that one of the predicate offenses was set aside prior to Stoute’s original plea to the felony DWLS charge, and that the record is unclear as to whether he has predicate DWLS convictions to support this felony DWLS conviction. As such, we remand this ease for an evidentiary hearing to determine whether Stoute has sufficient prior DWLS convictions to support his felony conviction here.
In case number 4D00-699, a jury convicted Stoute of attempted second-degree murder and the court sentenced him to life in prison as an habitual felony offender. Under section 775.084(1), Florida Statutes (1999), Stoute would qualify as an habitual felony offender if his felony DWLS conviction is not reversed. The result of this issue depends on the outcome of the evidentiary hearing on remand.
As to all other issues raised in this appeal, we affirm as unpersuasive.
AFFIRMED in part; REMANDED in part for an evidentiary hearing to determine whether Stoute has additional DWLS convictions to support his felony DWLS conviction in case number 4D00-604 and habitual offender sentence in case number 4D00-699.
KLEIN and SHAHOOD, JJ„ concur.
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Stoute v. State, 915 So. 2d 1245 (Fla. 4th DCA 2005)…lly sentenced the defendant as a habitual offender to life in prison. After a successful appeal to this court, and upon remand, the trial court determined the defendant was not a habitual offender and re-sentencing was required. See Stoute v. State, 802 So. 2d 408 (Fla. 4th DCA 2001). The trial court conducted two hearings prior to re-sentencing the defendant. The defendant maintained the trial court had made possession of a firearm an element of the crime through its instructions to the jury, thereby preven…