DWAYNE MCNAIR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenges his habitual felony offender sentence on the ground that one of his predicate felonies was committed after the instant offense, making the sentence illegal. The court reverses the trial court's summary denial of his motion and remands for the trial court to either attach record portions conclusively refuting the claim or to resentence the appellant.
The court held that the habitual sentence is illegal if one of the predicate felonies was committed after the instant offense, as this violates the sequential predicate felony requirement under Florida Statutes § 775.084(l)(a)1. The trial court improperly summarily denied the motion because the record did not conclusively refute appellant's claim.
[1] A habitual felony offender sentence is illegal if a predicate felony was committed after the instant offense.
[2] A facially sufficient claim that a habitual sentence is illegal may be raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).
Previewing 2 of 5 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“Where it can be shown that the appropriate predicate felonies do not exist as a matter of law from the face of the record, a habitualization can be challenged through a rule 3.800(a) motion.”
Establishes the legal standard for challenging habitual sentences based on defective predicate felonies
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of two counts of armed robbery and one count of armed burglary and was sentenced concurrently as a habitual felony offender to…
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PER CURIAM.
Appellant challenges the trial court’s order summarily denying his motion alleging his sentence is illegal, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because appellant has stated a facially sufficient claim that his habitual sentence is illegal as one of his predicate felonies was committed after the instant felony and as the trial court’s record attachments do not conclusively refute appellant’s claim, we reverse.
Appellant was convicted of armed robbery (two counts) and armed burglary (one count) and was sentenced concurrently as a habitual felony offender to twenty-five years’ imprisonment with three years’ mandatory minimum for each offense. Appellant alleges that his predicate convictions were not sequential as one of the predicates was committed after the instant offense.
Where it can be shown that the appropriate predicate felonies do not exist as a matter of law from the face of the record, a habitualization can be challenged through a rule 3.800(a) motion. Bover v. State, 797 So. 2d 1246, 1248-49 (Fla.2001). Section 775.084(l)(a)l., Florida Statutes (1995), requires two or more predicate felonies as a prerequisite to habitualization. Therefore, if the trial court relied on a felony that occurred after the instant offenses, appellant’s habitual sentences are illegal.
The trial court improperly denied appellant’s motion as successive as the record does not conclusively refute appellant’s claim. See Griffis v. State, 819 So. 2d 253, 254 (Fla. 1st DCA 2002); Clark v. State, 898 So. 2d 1008, 1008-09 (Fla. 2d DCA 2005). We, therefore, reverse the summary denial of appellant’s claim that his habitual sentence is illegal and remand for the attachment of record portions conclusively refuting his claim or resentencing. On remand, if resentencing is required and if appellant did not object to the habitual offender sentence on the basis that he lacked requisite prior sequential convictions at the time his habitual offender sentence was imposed, the State should have the opportunity to present evidence that other prior convictions existed that would satisfy the sequential conviction requirement. See Bover, 797 So. 2d at 1251.
Appellant’s claim based on Heggs v. State, 759 So. 2d 620 (Fla.2000), is affirmed. However, in the event appellant is resen-tenced under the guidelines, we note that the 1994 guidelines apply. See Trapp v. State, 760 So. 2d 924 (Fla.2000).
REVERSED in part, AFFIRMED in part, and REMANDED.
KAHN, C.J., LEWIS and POLSTON, JJ., concur.
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…ings. The following is but a small sampling of appellate cases from each of the district courts of appeal involving the prosecutors’ failure to present the information needed to correct enhanced sentencing that had been imposed. See McNair v. State, 920 So. 2d 111 (Fla. 1st DCA 2006) (resentencing ordered where State did not properly prove two or more predicate felonies as required to habitualize); Rogers v. State, 944 So. 2d 513 (Fla. 4th DCA 2006) (resentencing ordered where State failed to provide competen…
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Kleckley v. State, 4 So. 3d 1290 (Fla. 4th DCA 2009)…s claim that his habitual sentence imposed for count two is illegal and remand for the attachment of record portions conclusively refuting his claim or for resentencing. See Bover v. State, 797 So. 2d 1246, 1251 (Fla.2001). See also McNair v. State, 920 So. 2d 111 (Fla. 1st DCA 2006). We affirm the trial court’s denial of appellant’s other claim. WARNER, TAYLOR and MAY, JJ., concur.…
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Byrd v. State, 182 So. 3d 889 (Fla. 1st DCA 2016)…bject during sentencing on the basis that the applicable prior convictions did not qualify him for HFO enhancement, the state may choose to present other, prior convictions that satisfy the qualifying conviction re [*890] quirement. McNair v. State, 920 So. 2d 111, 112 (Fla. 1st DCA 2006). REVERSED AND REMANDED. LEWIS, WETHERELL, and BILBREY, JJ., concur.…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Thomas v. State, 819 So. 2d 253 (Fla. 1st DCA 2002)
- Tavares Clark v. State, 898 So. 2d 1008 (Fla. 2d DCA 2005)