JESSE ZINK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jesse Zink appeals his conviction for robbery and sentence as a violent career criminal. The court affirms, holding that Zink had sufficient qualifying convictions under Florida's violent career criminal statute despite the trial court's improper treatment of two 1990 judgments, because a 1987 burglary conviction independently qualified as a forcible felony.
The court affirms the violent career criminal sentence because Zink had at least three qualifying convictions: the 2003 robbery, one of the 1990 convictions (robbery or escape), and the 1987 burglary conviction. Although the two 1990 judgments were improperly treated as separate qualifying offenses, the 1987 burglary conviction independently qualifies as a forcible felony under section 776.08, satisfying the violent career criminal requirement.
[1] A defendant must have three or more qualifying convictions to be sentenced as a violent career criminal.
[2] Qualifying convictions for violent career criminal sentencing can include any forcible felony or escape.
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Join FLexlaw to unlock all legal intelligence“To qualify for sentencing as a violent career criminal, a defendant must have three or more qualifying convictions.”
Establishes the basic statutory requirement for violent career criminal sentencing
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Join FLexlaw to unlock all legal intelligenceAt sentencing, the State introduced four prior judgments: a 2003 robbery conviction, two 1990 judgments entered the same day by the same judge imposin…
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NORTHCUTT, Judge.
Jesse Zink challenges his conviction for robbery and his sentence as a violent career criminal to thirty years in prison. We affirm Zink’s conviction without comment and write to explain why we disagree with the State’s concession of error on the sentencing issue.
Zink maintains that the trial court erred by imposing a violent career criminal sentence because the State failed to prove that he had the requisite number of prior convictions. To qualify for sentencing as a violent career criminal, a defendant must have three or more qualifying convictions. § 775.084(l)(d), Fla. Stat. (2002). Qualifying convictions can include any forcible felony, as described in section 776.08, or escape. § 775.084(l)(d)(l)(a), (f). At sentencing, the State introduced a 2003 judgment that included a conviction for robbery, two 1990 judgments with convictions for robbery and escape, and a 1987 judgment with a burglary conviction.
The 1990 judgments were entered on the same day and by the same judge, who imposed concurrent sentences. At the sentencing hearing in the instant case, defense counsel objected to the court’s treat ment of these convictions as separate qualifying offenses. See § 775.084(5) (requiring sequential convictions that were “sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony” in order to impose violent career criminal sentence); see also Bover v. State, 797 So. 2d 1246, 1250 (Fla. 2001) (stating that under § 775.084(5), “although the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of the same sentencing proceeding”).
At the sentencing hearing, the prosecutor argued that the qualifying convictions did not have to be sequential. On appeal, however, the State acknowledges this requirement, and it concedes error because the 1990 judgments appear to constitute only a single qualifying conviction. In conceding that a reversal is warranted, however, the State has overlooked the 1987 burglary conviction. Under section 776.08, Florida Statutes (2002), a forcible felony includes burglary as well as robbery. See Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002) (holding that burglary is a qualifying offense for violent career criminal sentencing). Accordingly, we affirm.
Affirmed.
WHATLEY, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
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Butler v. State, 93 So. 3d 328 (Fla. 2d DCA 2011)…s a forcible felony. § 776.08, Fla. Stat. (2002). Butler was sentenced for multiple burglaries on his two original sentencing dates, but only one conviction can be counted for each sentencing proceeding. See Bover, 797 So. 2d at 1250; Zink v. State, 951 So. 2d 34, 35 (Fla. 2d DCA 2007) (applying this principle to VCC sentencing).…
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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
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002)