ANTHONY BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2011-06-29
No. 2D11-3605
ALTENBERND and DAVIS, JJ„ Concur.
93 So. 3d 328 Florida District Court of Appeal, Second District (2011) Positive Treatment
Cited by 3 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Anthony Butler appeals his violent career criminal (VCC) sentence, arguing he has only two of the three predicate convictions required for VCC status. The court reverses and remands, finding that a 2001 judgment was merely a probation revocation for an earlier conviction and does not constitute a separate conviction.


Holding

The court held that Butler has only two separate predicate convictions. The November 16, 2001 judgment was merely a probation revocation for the June 17, 1994 conviction and does not constitute a third separate conviction, as the term 'convicted' encompasses only the initial adjudication of guilt, not subsequent judgments arising from probation revocation.


Headnotes

[1] A claim that a defendant was adjudicated a violent career criminal without the requisite predicate convictions may be raised and corrected as an illegal sentence under Fl…

[2] A judgment entered upon revocation of probation does not constitute a new conviction for the purpose of habitual offender sentencing statutes.

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

Key Quotes

“the term does not encompass a new 'judgment' entered upon revocation of the probation being served for an earlier offense of which the defendant was already convicted”

Establishes that a probation revocation judgment does not create a separate conviction for VCC predicate counting purposes

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Butler pleaded guilty to burglary and grand theft and was sentenced to 30 years as a VCC for the burglary with a concurrent 10-year HFO sentence for t…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
VILLANTI, Judge.

VILLANTI, Judge.

Anthony Butler appeals from an order denying his motion filed under Florida Rules of Criminal Procedure 3.800(a) and *3298.850. We affirm the postconviction court’s denial of Butler’s rule 3.850 claim without further comment. We reverse and remand for further proceedings as to the rule 3.800(a) claim because the record reflects that Butler possesses only two of the three predicate convictions required to support Butler’s violent career criminal (VCC) status.

Butler entered a plea of guilty to one count each of burglary and grand theft in return for a sentence of thirty years’ imprisonment as a VCC for the burglary, with the thirty years designated a minimum-mandatory term, and a concurrent ten years as a habitual felony offender (HFO) for the theft.1 Butler alleged in his motion that he has been convicted of only two of the three predicate offenses required for a VCC designation and sentence: burglaries for which Butler was sentenced on March 18, 1988, and June 17, 1994. The postconviction court, however, denied Butler’s claim, attaching what it interpreted as the record of another conviction, the judgment and sentence documentation dated November 16, 2001, for a burglary. In a motion for rehearing, Butler correctly pointed out that these documents were entered upon revocation of the probation imposed for the burglaries for which he was originally sentenced on June 17, 1994,2 and should therefore not count as a separate conviction. The court denied the motion for rehearing.

Rule 3.800(a) is an appropriate vehicle for raising the claim Butler raised. See Bover v. State, 797 So.2d 1246, 1251 (Fla.2001) (“[W]e conclude that the adjudication of a defendant as a habitual offender when the requisite sequential felonies do not exist may be corrected as an illegal sentence pursuant to rule 3.800(a) so long as the error is apparent from the face of the record.”); Molfetto v. State, 874 So.2d 668, 669 (Fla. 2d DCA 2004) (applying this principle to VCC sentencing). Butler’s claim is facially sufficient because he alleges that a third VCC predicate conviction does not exist. See Macaluso v. State, 912 So.2d 694, 695 (Fla. 2d DCA 2005) (“A facially sufficient attack on the legality of a habitual felony offender (‘HFO’) sentence requires the defendant to affirmatively allege that the predicate prior convictions do not exist as a matter of law.”).3

A violent career criminal is a defendant who “has previously been convicted as an adult three or more times ” of any of certain enumerated offenses, including forcible felonies. § 775.084(1)(d)(1)(a), Fla. Stat. (2002) (emphasis added).4 Although *330the word “convicted” has minor variations in meaning depending on the statute or other authority, the term does not encompass a new “judgment” entered upon revocation of the probation being served for an earlier offense of which the defendant was already convicted. See, e.g., State v. Smith, 160 Fla. 288, 34 So.2d 533, 534 (1948) (“The word ‘convicted,’ as used in [a minimum-mandatory-sentencing statute since repealed], means the adjudication by the court of the defendant’s guilt and the pronouncement by the court of the penalty imposed on the defendant upon the acceptance of a plea of guilty or upon a verdict of guilty, or a finding of guilty by the court.”); cf. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.”); Lambert v. State, 545 So.2d 838, 841 (Fla.1989) (noting that a “violation of probation is not itself an independent offense punishable at law in Florida” and that conduct underlying such a violation is punished by, inter alia, “revocation of probation” and “conviction and sentencing for the new offense ” (emphasis added)); see also People v. Nance, 221 P.3d 428, 431 (Colo.App.2009) (“[P]ro-bation revocation is not a conviction....”). To the extent that conviction is considered to occur upon adjudication, Smith, 34 So.2d at 534, and a defendant is first adjudged guilty for the underlying offense upon revocation of probation, § 948.06(1), Fla. Stat. (2002), there is still only one conviction for a given offense. Cf. Valdes v. State, 3 So.3d 1067,1069 (Fla.2009) (noting that the federal and Florida constitutions “prohibit[] subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense”).

In short, the postconviction court erred in relying on a second “judgment” that did not reflect a new conviction but merely a revocation of the probation imposed on Butler upon an earlier conviction. The State concedes this in its answer brief. We therefore reverse and remand for further proceedings. The State shall have the opportunity to submit competent evidence of a third conviction. See Martin v. State, 884 So.2d 452, 453 (Fla. 3d DCA 2004). If the State cannot do so, Butler shall have the opportunity to withdraw his plea, see McDuffie v. State, 946 So.2d 99, 100 (Fla. 2d DCA 2006), at which time the parties may arrive at a new plea agreement that omits the VCC designation, failing which a trial will be necessary.

Affirmed in part, reversed in part, and remanded with instructions.

ALTENBERND and DAVIS, JJ„ Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Cunningham v. State, 109 So. 3d 1261 (Fla. 2d DCA 2013)
    …on of probation. This is improper because it is impossible to confirm that the original sentencing for the second set of predicate offenses did not take place together with the sentencing for the offenses of the first predicate. See Butler v. State, 93 So. 3d 328, 330 (Fla. 2d DCA 2011) (holding that a “judgment” entered on violation of probation did not reflect a new conviction and thus did not support a violent career criminal sentence). On remand, the postconviction court may again deny this claim if it a…
  • Chapman v. State (Fla. 5th DCA 2022)
    …argument in opposition, asserting only that remand is required. We agree. The violation of probation in case number 1991-CF-2132 is not an enumerated conviction pursuant to the VCC statute. See § 775.084(1)(d), Fla. Stat. (2006); Butler v. State, 93 So. 3d 328, 329–30 (Fla. 2d DCA 2011). Accordingly, on this record, we reverse the denial as it pertains to case number 1991-CF-2132 with instructions that the trial court either grant relief or attach portions of the record conclusively refuting Appellant’s c…

Authorities Cited (15 total)

View all 15 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw