ALLAN L. HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Allan Hall appealed the summary denial of his motion to correct an allegedly illegal sentence, challenging a habitual violent felony offender sentence imposed for sexual battery convictions. The court reversed in part and remanded, holding that Hall's habitual offender sentence must be served before his non-habitual life sentence, and clarifying that only one qualifying prior conviction is necessary for habitual violent felony offender sentencing.
Hall's habitual violent felony offender sentence must be served first. Only one qualifying prior conviction is necessary for habitual violent felony offender sentencing, contrary to a literal reading of dicta in Johnson v. State. The trial court's denial of Hall's claim was improper because sexual battery does not preclude the entitlement to control release that the habitual sentence must be served first to preserve.
[1] A defendant may be sentenced as a habitual violent felony offender with only one qualifying prior conviction.
[2] A habitual violent felony offender sentence must be served before a non-habitual sentence when sentences are consecutive, to preserve the defendant's entitlement to contr…
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Join FLexlaw to unlock all legal intelligence“a defendant may receive a habitual violent felony offender if the defendant has two qualifying prior convictions, but two qualifying priors are not necessary. A defendant needs only one qualifying prior conviction in order to be sentenced as a habitual violent felony offender.”
Clarification of the statutory requirement for habitual violent felony offender sentencing
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Join FLexlaw to unlock all legal intelligenceHall was convicted of sexual battery with slight force (a second-degree felony) and sexual battery with great force (a life felony). For the second-de…
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[*1155] DAVIS, Judge.
Allan L. Hall appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand on one of his claims and affirm the remaining claims without comment except to clarify a statement in Johnson v. State, 765 So. 2d 914 (Fla. 2d DCA 2000).
In one of Hall’s claims, he cited Johnson as standing for the proposition that two qualifying prior convictions are necessary for a habitual violent felony offender sentence. Johnson does in fact say in dicta that “a defendant may receive a habitual violent felony offender sentence when he or she has previously been convicted of two or more felonies.” Johnson, 765 So. 2d at 915. We write now to clarify this statement. Indeed, a defendant may receive a habitual violent felony offender if the defendant has two qualifying prior convictions, but two qualifying priors are not necessary. A defendant needs only one qualifying prior conviction in order to be sentenced as a habitual violent felony offender. § 775.084(l)(b)(1), Fla. Stat. (1997).
Hall was convicted of sexual battery with slight force which is a second-degree felony pursuant to section 794.011(5), Florida Statutes (1991), and sexual battery with great force which is a life felony pursuant to section 794.011(3), Florida Statutes (1991). For the second-degree felony, he received a habitual violent felony offender sentence of thirty years with a ten-year minimum mandatory sentence. For the life felony, he received a non-habitual life sentence. The sentences are consecutive.
Hall argues that the habitual sentence must be served first. He is correct. In Smith v. State, 632 So. 2d 95, 97 (Fla. 2d DCA 1994), this court held:
Although it is not a departure from the guidelines to run the guidelines sentence and habitual offender sentences consecutively, the habitual offender sentence must be served first in order to preserve the appellant’s entitlement, if any, to control release.
(Citations omitted.) The trial court denied Hall’s claim, stating that he “is not entitled to control release as he has been convicted of sexual battery.” However, Smith states that the purpose is “to preserve the appellant’s entitlement, if any, to control release.” Smith, 632 So. 2d at 97. In fact, sexual battery was one of the crimes committed by the defendant in Smith. (Emphasis added.) Hall is entitled to serve his habitual sentence first.
The record on appeal is limited, and we are unable to determine the order in which Hall was ordered to serve his consecutive sentences. We reverse and remand for the trial court to determine the order of the consecutive sentences and to insure that the habitual sentence is to be served prior to the non-habitual sentence.
Affirmed in part, reversed in part, and remanded.
FULMER, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
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Darian Williams v. State, 898 So. 2d 966 (Fla. 3d DCA 2005)…rford decision is apparently wrongly decided. As the Second District has explained in another of its decisions, “A defendant needs only one qualifying prior conviction in order to be sentenced as a habitual violent felony offender.” Hall v. State, 821 So. 2d 1154 (Fla. 2d DCA 2002) (citation omitted); see Weford v. State, 784 So. 2d 1222, 1223 (Fla. 3d DCA 2001); Daniels v. State, 634 So. 2d 187, 193 (Fla. 3d DCA 1994). Since only one qualifying felony is needed for an HVFO adjudication, it does not matter i…
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Ponton v. State, 73 So. 3d 70 (Fla. 2011)…istrict pointed to a later decision by the Second District, which explained: “A defendant needs only one qualifying prior conviction in order to be sentenced as a habitual violent felony offender.” Williams, 898 So. 2d at 967 (quoting Hall v. State, 821 So. 2d 1154 (Fla. 2d DCA 2002)). The Third District concluded: “Since only one qualifying felony is needed for an HVFO adjudication, it does not matter if the qualifying felony was sentenced together with, or separate from, other qualifying felonies.” Williams,…
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Dubose v. State, 834 So. 2d 423 (Fla. 2d DCA 2003)…et aside the PRR designation on the life sentence. The consecutive five-year PRR sentence was not amended. Dubose argues that the trial court erred in running the five-year PRR sentence consecutive to his life sentence. We agree. In Hall v. State, 821 So. 2d 1154 (Fla. 2d DCA 2002), the defendant was ordered to serve a habitual violent felony offender sentence of thirty years consecutively to a nonhabitual life sentence. This court stated that Hall was entitled to serve his habitual sentence first “ ‘in orde…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Owens v. Leisure Mgmt. Miami, Inc., 632 So. 2d 95 (Fla. 3d DCA 1994)
- Johnson v. State, 765 So. 2d 914 (Fla. 2d DCA 2000)