HERMAN U. GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's summary denial of a motion to correct an illegal sentence, holding that a sentence enhancement under an unconstitutional habitual violent felony offender statute must be vacated and the defendant resentenced.
A sentence enhancement imposed under Chapter 95-182's habitual violent felony offender statute is improper and must be vacated because that statute was declared unconstitutional as violative of the single-subject rule.
[1] A sentence enhancement imposed under a statute declared unconstitutional as violative of the single-subject rule must be vacated when the offense date falls within the st…
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Join FLexlaw to unlock all legal intelligenceGreen was convicted of second-degree murder with a firearm and sentenced as a life felony with an enhancement under the habitual violent felony offend…
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PER CURIAM.
The appellant challenges the trial court’s summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a).
The appellant claims that his sentence for the life felony of second-degree murder with a firearm was enhanced improperly under the habitual violent felony offender statute. The appellant’s sentence was enhanced pursuant to amendments to the habitual violent felony offender statute enacted by Chapter 95-182, Laws of Florida. Chapter 95-182 was declared unconstitutional as violative of the single-subject rule. See State v. Thompson, 750 So. 2d 643, 649 (Fla.1999).
The appellant’s offense date fell between October 1, 1995, and May 24, 1997, the window period for challenging the violent career criminal sentencing provisions created by chapter 95-182. See Salters v. State, 758 So. 2d 667, 671 (Fla.2000).
Thus, the enhancement of the appellant’s life felony under the habitual violent felony offender statute is improper. See Woodson v. State, 777 So. 2d 1167, 1168 (Fla. 3d DCA 2001), citing Everett v. State, 770 So. 2d 192, 193 (Fla. 2d DCA 2000). As conceded by the state, the appellant should be resenteneed for the life felony conviction pursuant to the laws that were in effect at the time of his offense. We accordingly reverse the order summarily denying this claim and remand for the trial court to resentence the appellant on his conviction for second-degree murder with a firearm. The appellant’s remaining convictions, which were not life felonies, are unaffected by this decision.
REVERSED AND REMANDED WITH INSTRUCTIONS.
BOOTH, WOLF and LEWIS, JJ., concur.
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Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003)…nt was resentenced because he correctly alleged in his rule 3.800(a) motion that he should not have been habit-ualized on his conviction, which was for a life felony with an offense date between October 1, 1995, and May 24, 1997. See Green v. State, 810 So. 2d 1101 (Fla. 1st DCA 2002). He appeals the resentencing because, he alleges, he was neither present nor represented by counsel at the resen-tencing. His claim has merit. A defendant has a right to be present at resentencing from a rule 3.800(a) motion. R…
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Kinsey v. State, 831 So. 2d 1253 (Fla. 2d DCA 2002)…ter 95-182 as unconstitutional. The imposition of a habitual felony offender sentence for a life felony can be challenged under the authority of Thompson if the life felony was committed between October 1, 1995, and May 24, 1997. See Green v. State, 810 So. 2d 1101 (Fla. 1st DCA 2002) (holding that the window period for challenging the enhanced sentencing provisions created by chapter 95-182 is from October 1, 1995, to May 24, 1997). Since Kinsey’s life felonies were committed on January 27, 1997, during the…
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Johnson v. State, 934 So. 2d 482 (Fla. 3d DCA 2004)…ffender for a life felony. Martin v. State, 795 So. 2d 143 (Fla. 3d DCA 2001). As the State confesses, the Defendant should be re-sentenced for the life felony in count three pursuant to the laws in effect at the time of his offense. Green v. State, 810 So. 2d 1101 (Fla. 1st DCA 2002). Reversed and remanded.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thompson, 750 So. 2d 643 (Fla. 1999)
- Salters v. State, 758 So. 2d 667 (Fla. 2000)
- Everett v. State, 770 So. 2d 192 (Fla. 2d DCA 2000)
- Woodson v. State, 777 So. 2d 1167 (Fla. 3d DCA 2001)