KERN R. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kern Davis appeals the denial of a rule 3.800(a) motion. Davis argues that he does not qualify for habitual violent felony offender sentencing (HVFO) because the Eleventh. Circuit vacated the only prior conviction that qualified him as an HVFO. The State does not dispute the authenticity of the order vacating the prior robbery conviction. The trial court could take judicial notice of the order in ruling on the rule 3.800(a) motion. Wencel v. State, 915 So.2d 1270 (Fla. 4th DCA 2005). Alternatively, this could have been treated as a rule 3.850 motion because it was filed within two years - of the order vacating the prior robbery conviction. The State does not dispute that this was the only offense qualifying him for HVFO sentencing. Because he does not have another enumerated predicate offense, the sentence is illegal. See Bover v. State, 797 So.2d 1246 (Fla.2001). The order denying Davis’s rule 3.800(a) motion is reversed and the case is remanded for resentencing. Although he does not qualify as an HVFO, he may qualify as a habitual felony offender and those sanctions may be sought on remand.
Reversed and Remanded.
TAYLOR, MAY and KLINGENSMITH, JJ., concur.
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Kern R. Davis v. State, 227 So. 3d 137 (Fla. 4th DCA 2017)…emanded the case for resen-tencing with the following direction: “Although [Davisj does not qualify as an [habitual violent felony offender], he may qualify as a habitual felony offender and those sanctions may be sought on remand.” Davis v. State,. 164 So. 3d 96 (Fla. 4th DCA 2016). On remand, the State filed its notice of intent to seek an enhanced penalty for Davis as a habitual felony offender. Davis filed a sentencing memorandum, listing as mitigating factors his strong' family support, the fact that h…
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Figueroa v. State, 165 So. 3d 802 (Fla. 3d DCA 2015)…Id. In accordance with Griffin, 160 So. 3d 63, we hold that the error here was fundamental, as Figueroa did not concede the element of intent and he had no affirmative obligation to dispute intent or any element of the crime. Id.; Page v. State, 164 So. 3d 96, (Fla. 3d DCA ); Moore v. State, 165 So. 3d 712, 2015 WL 2089084, 40 Fla. L. Weekly D1075 (Fla. 3d DCA May 6, 2015). Because we find that fundamental error occurred, we reverse and remand for a new trial. REVERSED AND REMANDED…
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Dean v. State (Fla. 4th DCA 2020)
Authorities Cited
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Wencel v. State, 915 So. 2d 1270 (Fla. 4th DCA 2005)