MICHAEL MCCALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael McCall appealed the denial of his motion to correct an illegal sentence, arguing that his habitual felony offender sentence was improper because the predicate convictions did not satisfy the sequential convictions requirement. The court affirmed, holding that probation constitutes a "sentence" under Florida's habitual felony offender statute and that McCall's predicate convictions were properly sequential.
The court held that probation is a sentence within the meaning of section 775.084 and therefore the predicate convictions were properly sequential. McCall's habitual felony offender sentence was legal and the summary denial of his motion to correct illegal sentence was proper.
[1] Probation constitutes a "sentence" for the purpose of determining predicate offenses for habitual felony offender status.
[2] A habitual felony offender sentence is not illegal when the predicate convictions, including the imposition of probation, occur on the same day.
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Join FLexlaw to unlock all legal intelligence“When it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced.”
Establishes the legislative intent behind the habitual felony offender statute regarding sequential convictions.
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Join FLexlaw to unlock all legal intelligenceMcCall was convicted by jury on March 27, 1996, of burglary of a dwelling and resisting arrest without violence. On October 10, 1996, he was sentenced…
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DAVIS, Judge.
Michael McCall challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On March 27, 1996, McCall was found guilty by a jury of burglary of a dwelling and resisting arrest without violence. On October 10, 1996, the trial court determined that McCall met the habitual felony offender criteria and imposed a habitual felony offender sentence of fifteen years in prison followed by fifteen years of probation.
McCall subsequently filed a motion to correct illegal sentence in which he claimed that his habitual felony offender sentence was illegal because he lacked the necessary predicate offenses for such a sentence. To establish McCall as a habitual felony offender, the State relied on prior convictions in case numbers 91-2765, 91-3206, and 91-3236. The record shows that McCall was placed on probation in case number 91-2765 on September 16, 1991. McCall was convicted in case numbers 91-3206 and 91-3236 on May 6, 1992. On that same day, the court found McCall in violation of probation in case number 91-2765.
In his motion, McCall claimed that he was sentenced in case number 91-2765 for the first time after the finding of a violation of probation. Thus the sentences for the predicate convictions used to classify McCall as a habitual felony offender were entered on the same day, and his habitual sentence violated the sequential convictions requirement of section 775.084(5), Florida Statutes (2002). McCall’s claim is based on the assertion that probation is not a sentence for purposes of section 775.084. See Richardson v. State, 28 Fla. L. Weekly D1716, — So. 2d -, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003). We disagree.
When it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation. Therefore, we affirm the order of the trial court and, accordingly, certify conflict with Richardson, — So. 2d -, 28 Fla. L. Weekly D1716.
Affirmed; conflict certified.
ALTENBERND, C.J., and SILBERMAN, J., Concur.
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Cited By (51 total)
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Erick Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2003)…PER CURIAM. The State’s motion for rehearing is granted in part. We supplement the opinion to address the State’s argument on rehearing and to certify conflict with McCall v. State, 862 So. 2d 807 (Fla. 2d DCA 2003). To recap, Richardson was convicted of robbery and sentenced as a habitual offender to twenty years in prison. Richardson claimed that the predicate convictions used to declare him a habitual offender were not sequential. To esta…1 / 2
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State v. Erick Richardson, 915 So. 2d 86 (Fla. 2005)…PER CURIAM. We have for review Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So. 2d 950, 952 (Fla. 4th DCA 2004), which certified conflict with the decision in McCall v. State, 862 So. 2d 807 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. FACTS AND PROCEEDINGS BELOW The certified issue on this appeal concerns the construction of section 775.084(5), Florida Statutes (1999), a provision of the habitual felon…1 / 2
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Kasim McDONALD v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)…PER CURIAM. Affirmed. See McCall v. State, 862 So. 2d 807 (Fla. 2d DCA 2003). As we did in McCall, we certify conflict with Richardson v. State, 884 So. 2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003). DAVIS, COVINGTON, and KELLY, JJ., Concur.…
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