NICK MOLFETTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2004-05-12
No. 2D03-3397
KELLY and VILLANTI, JJ., concur.
874 So. 2d 668 Florida District Court of Appeal, Second District (2004) Positive Treatment
Cited by 6 cases

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.

Synopsis

Nick Molfetto appealed the denial of his motion to correct an illegal sentence imposed as a violent career criminal (VCC). The appellate court found the record did not clearly show Molfetto had the three requisite prior felony convictions needed for VCC sentencing and reversed for the trial court to determine whether he actually possessed qualifying predicate felonies.


Holding

Molfetto's sentence is subject to challenge under rule 3.800(a) because the requisite predicate felonies do not exist on the face of the record. The appellate court reversed the trial court's denial of Molfetto's claim and remanded for the trial court to determine whether Molfetto actually has the three prior felony convictions necessary for VCC sentencing, allowing the State an opportunity to present record evidence of other qualifying convictions.


Headnotes

[1] A sentence may be challenged as illegal under Florida Rule of Criminal Procedure 3.800(a) if the requisite predicate felonies necessary to qualify a defendant as a violen…

[2] When a defendant challenges their qualification as a violent career criminal based on the existence of predicate felonies, the State must be given an opportunity to prese…

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Key Quotes

“Although the trial court attached those portions of the record it relied on to support the denial of Molfetto's claim, it is not apparent from the face of the record that Molfetto was actually convicted of three prior convictions as needed to properly sentence him as a VCC.”

Establishes the core issue that the record does not clearly show the requisite predicate felonies for VCC sentencing.

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Facts & Procedural History

Molfetto was adjudicated guilty and received an enhanced sentence as a violent career criminal. The trial court relied on documents showing Molfetto w…

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Nick Molfetto appeals the summary denial of his motion to correct illegal sentence and amended motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800, and his motion for transcript. In his motions, Molfetto challenges his sentence as illegal and raises several additional claims for relief. We affirm, without discussion, the trial court’s order as to all but one of Molfetto’s claims.

Molfetto was adjudicated guilty and received an enhanced sentence as a violent career criminal (VCC). In his motion, Molfetto claims his sentence is illegal because he does not have the requisite felonies to be sentenced as a VCC. Specifically, he claims that he does not qualify to be sentenced as a VCC pursuant to section 775.084(4)(c), Florida Statutes (1999), because the record does not show that he was convicted of aggravated assault in New York.

The trial court concluded that Molfetto met the criteria required to be sentenced as a VCC whose primary offense was a second-degree felony because he was properly found to have three prior qualifying convictions. See § 775.084. After reviewing the transcripts, the trial court concluded that the documents submitted by the State at the sentencing hearing to prove Molfetto had the requisite felony convictions were sufficient to support his designation as a VCC.

Although the trial court attached those portions of the record it relied on to support the denial of Molfetto’s claim, it is not apparent from the face of the record that Molfetto was actually convicted of three prior convictions as needed to properly sentence him as a VCC. The attached portions of the record show that Molfetto was charged with aggravated assault but do not show that he was convicted.1

Molfetto’s sentence is subject to challenge under rule 3.800(a) because the requisite predicate felonies necessary to qualify him as a VCC do not exist on the face of the record. See Mack v. State, 828 So. 2d 746 (Fla.2002); Bover v. State, 797 So. 2d 1246 (Fla.2001).

Therefore, we reverse the order of the trial court as to Molfetto’s claim that the requisite predicate felonies necessary to sentence him as a VCC do not exist on the face of the record and remand for a determination as to whether Molfetto has the three prior felony convictions needed to be properly sentenced as a VCC. At the time his sentence was imposed, Molfetto did not raise an objection on the basis that he lacked the requisite prior felony convictions necessary to be sentenced as a VCC.

Therefore, on remand, the State should be given the opportunity “to present record evidence that other prior convictions existed” to support his sentence as a VCC. See Bover 797 So. 2d at 1251. If Molfetto does not have the necessary prior convictions, he is entitled to be resentenced according to the sentencing guidelines; otherwise, the trial court should attach copies of his prior convictions or other portions of the record that conclusively show Molfetto was qualified to be sentenced as a VCC. See Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997).

Affirmed in part, reversed in part, and remanded with directions.

KELLY and VILLANTI, JJ., concur. . The documents from New York attached to the trial court’s order are docket sheets that do not identify, by title, the offense with which Molfetto was charged.

The trial court's reliance on the criminal history sheet prepared by the Tampa Police Department and the entry on that report, citing a New York conviction for aggravated assault, is misplaced. From a review of the New York statutes that correspond to those listed on the attached New York documents, it appears that Molfetto was charged with aggravated assault in New York.

However, the documents do not show that Molfetto was actually convicted of the charges.

Additionally, Molfetto attached to his petition a document that purports to show that the aggravated assault charge was reduced to resisting arrest.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Butler v. State, 93 So. 3d 328 (Fla. 2d DCA 2011)
    …udication of a defendant as a habitual offender when the requisite sequential felonies do not exist may be corrected as an illegal sentence pursuant to rule 3.800(a) so long as the error is apparent from the face of the record.”); Molfetto v. State, 874 So. 2d 668, 669 (Fla. 2d DCA 2004) (applying this principle to VCC sentencing). Butler’s claim is facially sufficient because he alleges that a third VCC predicate conviction does not exist. See Macaluso v. State, 912 So. 2d 694, 695 (Fla. 2d DCA 2005) (“A fac…
  • Molfetto v. State, 942 So. 2d 967 (Fla. 2d DCA 2006)
    …court affirmed except for one issue. We reversed and remanded for a determination of whether the record established the existence of an offense in New York that was essential for sentencing in Florida as a violent career criminal. Molfetto v. State, 874 So. 2d 668 (Fla. 2d DCA 2004). At the conclusion of that opinion, we stated: “If Molfetto does not have the necessary prior convictions, he is entitled to be resentenced according to the sentencing guidelines; otherwise, the trial court should attach copies of…
  • Cribbs v. State, 32 So. 3d 88 (Fla. 2d DCA 2009)
    …nce enhancement. State v. Hearns, 961 So. 2d 211, 215 (Fla.2007). The record does not establish the existence of the requisite predicate felonies to qualify Cribbs as a VCC. Accordingly, we reverse the dismissal of this claim. See Molfetto v. State, 874 So. 2d 668, 669 (Fla. 2d DCA 2004). We remand for resentencing in which any legal sentence may be imposed. See State v. Collins, 985 So. 2d 985 (Fla.2008); Molfetto v. State, 942 So. 2d 967 (Fla. 2d DCA 2006). Affirmed in part, reversed in part, and remanded…

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