JERMAINE MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that dual convictions for resisting an officer without violence during a single episode violate double jeopardy, and that the State's failure to timely serve written notice of intent to seek an habitual felony offender sentence was harmless error due to actual notice and ample time to prepare.
Jermaine Moore was convicted of two counts of resisting an officer without violence and sentenced as a habitual felony offender. He appealed, arguing …
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Jermaine Moore appeals his two convictions and sentences for resisting an officer without violence, arguing that the dual convictions violate double jeopardy where he fled from two officers in a single episode. With respect to this issue, the State properly concedes error. See Wallace v. State, 724 So.2d 1176 (Fla.1998). Moore also challenges his habitual felony offender (“HFO”) designation and sentence, arguing that the State did not timely serve its written notice of intent to seek an HFO sentence. With respect to this issue, the prosecutor announced his intent to seek an HFO sentence at the end of the trial, forty-three days before sentencing, in open court with Moore and his counsel present. Because Moore had actual notice of the State’s intent to seek HFO sentencing, and ample time to prepare for sentencing after having received this notice, the State’s failure to timely serve its written notice was harmless. See Massey v. State, 609 So.2d 598 (Fla.1992).1
Accordingly we remand this matter to the trial court with directions to vacate one of the convictions and sentences. Resen-tencing is not required.
AFFIRMED IN PART; REMANDED WITH DIRECTIONS.
ORFINGER, J., and PLEUS, JR., R., Senior Judge, concur.
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Moore v. State, 74 So. 3d 547 (Fla. 5th DCA 2011)…ntencing. As to this issue, we found that the failure to timely serve the written notice was harmless because Moore had been given actual notice of the State’s intent to seek HFO sentencing separate and apart from the written notice. Moore v. State, 12 So. 3d 1275 (Fla. 5th DCA 2009). Accordingly, we affirmed all convictions and sentences except for the duplicative resisting count. Id. Moore timely filed his 3.850 motion, alleging six grounds for relief, plus a claim of cumulative error. Although the trial c…
Authorities Cited
- Massey v. State, 609 So. 2d 598 (Fla. 1992)
- Castro v. State, 389 So. 3d 633 (Fla. 3d DCA 2025)