LEE DIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed Lee Dixon's sentence as a violent career criminal, finding that his prior conviction for robbery by sudden snatching did not qualify as an enumerated felony under Florida law. The court remanded for resentencing, allowing the trial court to impose a sentence based on other applicable sentencing guidelines.
Robbery by sudden snatching does not qualify as an enumerated felony under § 775.084(l)(d) because it is not identified in the statute's list of crimes, is not expressly identified as a forcible felony, and does not involve the use or threat of physical force or violence against an individual as required by § 776.08.
[1] Robbery by sudden snatching is not an enumerated felony for the purposes of qualifying a defendant as a violent career criminal.
[2] A forcible felony, as defined by statute, includes home-invasion robbery and robbery, but not necessarily all forms of robbery.
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“for a defendant to qualify as a violent career criminal, a court must find, among other things, that the primary felony offense for which the defendant is to be sentenced was committed "[w]ithin 5 years after the conviction of the last prior enumerated felony, or within 5 years after the defendant's release from a prison sentence ... that is imposed as a result of a prior conviction for an enumerated felony, whichever is later."”
Establishes the statutory requirement for violent career criminal sentencing, including the temporal relationship between offenses.
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Join FLexlaw to unlock all legal intelligenceLee Dixon was sentenced as a violent career criminal to forty years in prison with a thirty-year mandatory minimum. The trial court based this enhance…
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The defendant appeals his sentence as a violent career criminal to forty years in prison with a thirty-year mandatory minimum. We reverse and remand for resen-tencing because the defendant did not qualify as a violent career criminal.
For a defendant to qualify as a violent career criminal, a court must find, among other things, that the primary felony offense for which the defendant is to be sentenced was committed “[wjithin 5 years after the conviction of the last prior enumerated felony, or within 5 years after the defendant’s release from a prison sentence ... that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.” § 775.084(l)(d)3.b., Fla. Stat. (2008) (emphasis added). An “enumerated felony” is any one of those crimes identified in section 775.084(l)(d)l., including “[a]ny forcible felony, as described in s. 776.08.” § 775.084(l)(d)l.a., Fla. Stat. (2008). Section 776.08 defines a “forcible felony” as, among other things, “home-invasion robbery; robbery; ... and any other felony which involves the use or threat of physical force or violence against any individual.” § 776.08, Fla. Stat. (2008).
Here, the circuit court found the “enumerated felony” referenced in section 775.084(l)(d)3.b. to be the defendant’s pri- or conviction for “robbery by sudden snatching.” However, “robbery by sudden snatching” does not qualify as an “enumerated felony” under section 775.084(l)(d)3.b. for four reasons. First, *991“robbery by sudden snatching” is not any of those crimes identified in section 775.084(l)(d)l.b.-g. Second, robbery by sudden snatching is not expressly identified as a “forcible felony” under section 776.08. Third, “robbery by sudden snatching” cannot be considered as an implied “forcible felony” under section 776.08 because, if the legislature intended to include all forms of robbery under that statute, then it would have been unnecessary for the legislature to have particularly listed “home-invasion robbery” and “robbery” under section 776.08. Cf. Gorham v. State, 988 So.2d 152, 154 (Fla. 4th DCA 2008) (“If the legislature intended to include all burglaries for PRR sentencing, then it would have been unnecessary to state any particular form of burglary.”). Fourth, we previously have found that “robbery by sudden snatching” does not qualify as a “felony which involves the use or threat of physical force or violence against any individual” under section 776.08. Thomas v. State, 983 So.2d 746, 747 (Fla. 4th DCA 2008) (citing State v. Hearns, 961 So.2d 211, 212 (Fla.2007)).
During the sentencing hearing, the circuit court stated that, if the defendant did not qualify as a violent career criminal, then it would have sentenced the defendant as a habitual felony offender to thirty years in prison with a fifteen-year mandatory minimum. While we appreciate the court’s expression of a “backup” sentence, the defendant is entitled to a new sentencing hearing. See State v. Scott, 439 So.2d 219, 220 (Fla.1983) (“[0]nce the court has determined that the sentence was indeed illegal and the prisoner is entitled to a modification of the original sentence or the imposition of a new sentence, the full panoply of due process considerations attach.”). For the resentencing, the court “may restructure the sentences so as to achieve (but not exceed) the original sentencing intent.” Suarez v. State, 974 So.2d 451, 451 (Fla. 3d DCA 2008). To the extent the defendant has appealed his sentence on grounds other than that which this opinion addresses, we find those other grounds to be without merit, without further comment.
Reversed and remanded for resentenc-ing.
POLEN, HAZOURI and GERBER, JJ., concur.
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Kern R. Davis v. State, 227 So. 3d 137 (Fla. 4th DCA 2017)…imposed by the judge who tried the case. The State further argues that on resen-tencing after an erroneous habitualization, the trial court may impose a sentence to achieve the original sentencing intent, but not exceed it, citing to Dixon v. State, 41 So. 3d 990, 991 (Fla. 4th DCA 2010), and Suarez v. State, 974 So. 2d 451, 453 (Fla. 3d DCA 2008). In Galindez v. State, 955 So. 2d 517 (Fla. 2007), in a specially concurring opinion, Justice Cantero explained the principles of a de novo resentencing: We have…
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Rod Lee Bruce v. State, 276 So. 3d 1 (Fla. 4th DCA 2019)…e was released from a prison sentence imposed for an attempted burglary. Attempted burglary is not an enumerated felony. The state concedes error. We reverse the burglary sentences and remand for a de novo sentencing hearing. See Dixon v. State, 41 So. 3d 990, 991 (Fla. 4th DCA 2010). Finally, Bruce contends there are numerous scoresheet errors, including the state’s inclusion in the scoresheet of certain prior convictions, the erroneous scoring of a prior attempted burglary as a level 7 offense, and th…
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Authorities Cited
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- State v. Scott, 439 So. 2d 219 (Fla. 1983)
- Gorham v. State, 988 So. 2d 152 (Fla. 4th DCA 2008)
- Suarez v. State, 974 So. 2d 451 (Fla. 3d DCA 2008)
- Thomas v. State, 983 So. 2d 746 (Fla. 4th DCA 2008)