IRVIN SHORTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Irvin Shorter challenges his Violent Career Criminal (VCC) designation at sentencing, arguing he had only two prior felony convictions rather than the three required by statute. The court held that a nunc pro tunc sentencing from January 10, 1997 was not a separate conviction from November 18, 1996, and therefore the VCC designation was illegal.
The court held that the January 10, 1997 nunc pro tunc sentencing does not establish a separate felony conviction from the November 18, 1996 conviction because it was retroactively dated to correct a mistake in the original proceeding. Therefore, appellant had only two prior felony convictions, not three, and the VCC designation was illegal.
[1] A nunc pro tunc sentencing order does not establish a separate conviction from the original sentencing date if the court is merely correcting a clerical error.
[2] For purposes of habitual offender statutes, the term "conviction" is equivalent to adjudication.
Previewing 2 of 3 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“Basically, what we are going to do is pretend that we caught it and give you the same disposition that we had back in November, which is the youthful offender sentence”
The trial court's statement showing it was correcting an earlier sentencing error, not creating a new conviction.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced as a VCC on January 18, 2002 in Broward Circuit Court. The State relied on three prior felony convictions to support the desig…
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PER CURIAM.
Appellant challenges his designation as a Violent Career Criminal (VCC) at sentencing on January 18, 2002 in Broward Circuit Court. He. argues that at the time, of sentencing he possessed only two prior felony convictions, not three as required for the VCC designation. Appellant acknowledges his criminal convictions of November 18, 1996 and May 29, 1998. However, the sentence imposed on appellant on January 10, 1997, used by the State to qualify appellant as a VCC, is the subject of dispute. On that day, appellant was sentenced “nunc pro tunc 11-18-96.”
Under the habitual offender statute, the court must designate a defendant a VCC if it finds that the defendant has been previously convicted as an adult three or more times for a forcible felony as described in section 776.08, has been incarcerated in a state or federal prison, and has not received a pardon or had the conviction set aside. Fla. Stat. § 775.084(l)(d)l-6. For purposes of the habitual offender statute, the term “conviction” is equivalent to adjudication. See McCrae v. State, 395 So. 2d 1145, 1153-54 (Fla.1980). The question is whether the proceeding of January 10, 1997, establishes a separate felony conviction from the conviction of November 18, 1996. At the proceeding of January 10, 1997, the court made the following pronouncements:
THE COURT: You already entered a plea of guilty to a few charges back in November. There was one case ...
THE' COURT: Basically, what we are going to do is pretend that we caught it and give you the same disposition that we had back in November, which is the youthful offender sentence ...
THE COURT: Done ... This will be November, sentenced November 18th, to go along with the other cases that you were already sentenced to.
The Court thus convicted and sentenced appellant nunc pro tunc to the earlier date of November 18, 1996, which was when, but for a mistake, it should have been done. The adjudication was not separate from the conviction of November 18, 1996. Therefore, at appellant’s sentencing on January 18, 2002, the State only presented evidence of two prior felony convictions, those of November 18, 1996 and May 29, 1998, so it follows that the VCC designation is illegal.
GUNTHER, POLEN and KLEIN, JJ., concur.
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Cited By
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Colon v. State, 909 So. 2d 484 (Fla. 5th DCA 2005)…ing date of March 5, 1999.3 The significance of this is that the date and time of the sentences and convictions for the offenses scored on the recalculated 1995 scoresheet and the capital felony offenses remained March 5, 1999. See Shorter v. State, 891 So. 2d 1146, 1147 (Fla. 4th DCA 2005) (“The Court thus convicted and sentenced appellant nunc pro tunc to the earlier date of November 18, 1996, which was when, but for a mistake, it should have been done.”); Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001).…
Authorities Cited
- McCRAE v. State, 395 So. 2d 1145 (Fla. 1980)