BOB CHAMPAGNE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court reversed a trial court's denial of a motion to correct a sentence. The State conceded that the predicate offense used to sentence the appellant as a habitual violent felony offender was improperly used, leading to the reversal.
No, the 1992 robbery conviction could not serve as a predicate offense because the statute did not allow habitualization based on new crimes committed while serving community control on a qualifying offense for which adjudication had been withheld.
[1] A prior offense for which adjudication was withheld and the defendant was serving community control cannot serve as a predicate offense for habitual violent felony offend…
[2] A defendant may be habitualized based on new crimes committed within the probationary period of a qualifying offense for which adjudication had been withheld.
Previewing 2 of 4 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“The 1991 habitual violent felony offender statute allowed defendants to be habitualized based on new crimes committed within the probationary period of a qualifying offense for which adjudication had been withheld, see § 775.084(2), Fla. Stat. (1991), but the statute did not allow courts to habitualize defendants based on new crimes committed while serving sentences of community control on qualifying offenses for which adjudication had been withheld.”
This quote explains the legal distinction that made the predicate offense invalid for habitual offender sentencing.
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Join FLexlaw to unlock all legal intelligenceBob Champagne was sentenced as a habitual violent felony offender based on a 1992 robbery charge where he received a withhold of adjudication and comm…
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PER CURIAM.
Appellant, Bob Champagne, appeals a trial court order denying his motion, brought pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct his sentence of life in prison as an habitual violent felony offender. Based upon the State’s confession, which is confirmed by the record provided to us, we reverse and remand for resentencing.
On appeal to this Court, the State concedes the predicate offense used to habit-ualize Champagne in 1993 was a 1992 robbery charge, for which Champagne received a withhold of adjudication and a sentence of two years of community control followed by two years of probation. This concession is confirmed by our review of the record. The 1991 habitual violent felony offender statute allowed defendants to be habitualized based on new crimes committed within the probationary period of a qualifying offense for which adjudication had been withheld, see § 775.084(2), Fla. Stat. (1991), but the statute did not allow courts to habitualize defendants based on new crimes committed while serving sentences of community control on qualifying offenses for which adjudication had been withheld. Suarez v. State, 808 So. 2d 1288 (Fla. 3d DCA 2002).
Because Champagne’s adjudication had been withheld, and because he was serving a sentence of community control, not probation, at the time he committed the offenses for which he was habitualized, the prior robbery offense could not serve as a predicate offense qualifying Champagne as a habitual violent felony offender.
Accordingly, we reverse his conviction and remand this case to the trial court for resentencing. On remand, the State may again seek habitual offender treatment using other prior convictions (the State has indicated in response that there are “at least ten” other felonies within the applicable period) if they exist. Alternatively, the State may seek an upward departure from the sentencing guidelines. The defendant shall be entitled to be present at the resentencing hearing.
Reversed.