KENNETH PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Kenneth Perry appeals his conviction for sale of cocaine and habitual felony offender sentence. The First District Court of Appeal affirms both the conviction and sentence, rejecting the state's concession of error regarding the habitual felony offender classification.
The court affirms both the conviction and habitual felony offender sentence. The trial court did not abuse its discretion in limiting jury questioning, and the habitual felony offender sentence is authorized by statute because one of the predicate felony convictions did not involve a violation of section 893.13 relating to purchase or possession of controlled substances.
[1] A trial court does not abuse its discretion by limiting the scope of questioning of prospective jurors.
[2] A confession of error by the state is not binding on an appellate court.
Previewing 2 of 5 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“A confession of error, however, is not binding upon an appellate court, Dinardo v. State, 742 So.2d 287 n. 1 (Fla. 1st DCA 1998), and it is the practice of Florida appellate courts not to accept erroneous concessions by the state.”
Establishes that although the state conceded error, appellate courts are not obligated to accept such concessions and instead follow the practice of rejecting erroneous state concessions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePerry was convicted of selling or delivering cocaine. One of the predicate convictions used for his habitual felony offender sentence involved possess…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Confession Of Error cases and more on FLexlaw
Kenneth Perry appeals his conviction for sale of cocaine and his habitual felony offender sentence. We affirm both the conviction and sentence.
We find that the trial court did not abuse its discretion in limiting appellant’s questioning of prospective jurors and, thus, we affirm the conviction without further discussion. See Hooper v. State, 703 So. 2d 1143, 1145 (Fla. 4th DCA 1997). As to the sentencing issue, the state mistakenly concedes that, pursuant to the authority of McKnight v. State, 759 So. 2d 686 (Fla. 1st DCA 1998), approved sub nom., State v. McKnight, 764 So. 2d 574 (Fla.2000); and Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998), the trial court erred in classifying appellant as a habitual felony offender under section 775.084(l)(a)(3.), Florida Statutes (1997). It is ethically appropriate for the state to make a confession of error if no good faith argument can be made to support a point on appeal, see Philip J. Padovano, Appellate Practice, § 16.11 at 242-43 (2000-2001 Ed.). A confession of error, however, is not binding upon an appellate court, Dinardo v. State, 742 So. 2d 287 n. 1 (Fla. 1st DCA 1998), and it is the practice of Florida appellate courts not to accept erroneous concessions by the state. See Reed v. State, 783 So. 2d 1192, 1196 n. 2 (Fla. 1st DCA 2001); Henry v. State, 564 So. 2d 212, 213 (Fla. 1st DCA 1990); Santiago v. State, 669 So. 2d 334, 335 (Fla. 3d DCA 1996); Prieto v. State, 627 So. 2d 20, 21 (Fla. 2d DCA 1993), rev. denied, 634. So. 2d 626 (Fla.1994). We cannot agree that a reversal for resentencing is required under the circumstances here.
Appellant was convicted of selling or delivering cocaine. Even though one of the predicate convictions for appellant’s habitual felony offender sentence involved possession of a controlled substance, ap pellant’s habitual offender sentence is authorized by statute because one of the predicate felony convictions on which the sentencing court relied was “not a violation of section 893.13 relating to purchase or the possession of a controlled substance.” § 775.084(1)(a)(3.), Fla. Stat. (1997); see Ishmael v. State, 735 So. 2d 509, 510 (Fla. 2d DCA 1999)(“section 775.084(1)(a)(3.) ... only prohibits habitualization if both prior offenses are for purchase or possession”); Rollins v. State, 707 So. 2d 823, 824-25 (Fla. 3d DCA 1998).
We recognize that subparagraph 3 to paragraph 1(a) of section 775.084 contains a grammatical error because the sentence has a plural noun (“The felony ... and one of the two prior felony convictions ... ”) and a singular verb (“... is not a violation ...”). Nevertheless, the meaning and legislative intent of this provision is clear to us. As the Ishmael and Rollins courts, we read section 775.084(l)(a)(3.) to authorize a habitual felony offender sentence if the trial court finds that neither the sentencing felony nor one of the two predicate felonies involved a conviction for possession under section 893.13.
AFFIRMED.
KAHN and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (25 total)
-
Darrius Montgomery v. State, 230 So. 3d 1256 (Fla. 5th DCA 2017)
-
Demeko Ladjuan Sims v. State, 260 So. 3d 509 (Fla. 1st DCA 2018)
-
Simmons v. State, 886 So. 2d 399 (Fla. 1st DCA 2004)…State has not, in its briefs or oral argument, requested us to redefine the statute to “fix it” or conceded that the statute is not constitutional. Even had the State done so, we would ignore it as an erroneous concession. See Perry v. State, [*404] 808 So. 2d 268 (Fla. 1st DCA 2002) (ruling that erroneous concessions by the state should not be accepted). The dissent states that the "statute could, and should, be further limited to one-on-one e-mail communications rather than just to 'electronic mail.’ ” This…
Previewing 3 of 25 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001)
- Dinardo v. State, 742 So. 2d 287 (Fla. 1st DCA 1998)
- Rollins v. State, 707 So. 2d 823 (Fla. 3d DCA 1998)
- Hooper v. State, 703 So. 2d 1143 (Fla. 4th DCA 1997)
- Ishmael v. State, 735 So. 2d 509 (Fla. 2d DCA 1999)
- Fidel A. Prieto v. State, 627 So. 2d 20 (Fla. 2d DCA 1993)
- Santiago v. State, 669 So. 2d 334 (Fla. 3d DCA 1996)
- McKNIGHT v. State, 759 So. 2d 686 (Fla. 1st DCA 1998)
- State v. McKNIGHT, 764 So. 2d 574 (Fla. 2000)