DEMETRIUS DALLAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In an Anders appeal, the Florida District Court of Appeal, First District reversed and remanded for resentencing where the trial court improperly used both a prior felony conviction and a violation of probation of that same conviction as two separate qualifying convictions for habitual felony offender (HFO) enhancement. The state conceded the error, and the court held that the appellant must be resentenced with counsel present and represented.
No. A prior felony conviction and a violation of probation of that same conviction cannot serve as two separate qualifying convictions for HFO enhancement. The sentence must be vacated and the case remanded for resentencing, during which the state may attempt to prove HFO qualification using two legitimate separate prior felony convictions.
[1] A prior felony conviction and a violation of probation for that same conviction cannot both serve as qualifying convictions for habitual felony offender enhancement.
[2] A defendant must be present and represented by counsel when resentenced if the resentencing involves court discretion.
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 state concedes that the trial court should not have relied upon both a prior felony conviction and a violation of probation of that same conviction as the two qualifying convictions necessary to support habitual felony offender ("HFO") enhancement”
Establishes the core error: the same underlying felony conviction cannot be used twice to satisfy the two-conviction requirement for HFO enhancement.
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Join FLexlaw to unlock all legal intelligenceDemetrius Dallas was sentenced with a habitual felony offender enhancement based on two qualifying prior convictions. However, both qualifying convict…
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In this Anders1 appeal, the state concedes that the trial court should not have relied upon both a prior felony conviction and a violation of probation of that same conviction as the two qualifying convictions necessary to support habitual felony offender (“HFO”) enhancement of the appellant’s instant sentence.2 It further agrees that the appellant must be resentenced.
We therefore reverse and remand for the appellant to be resentenced. See State v. Collins, 985 So.2d 985 (Fla. 2008) (explaining that allowing the state a second opportunity to prove qualification for HFO enhancement does not violate double jeopardy, and that as long as the sentence imposed at resentencing is not more severe there is no presumption of vindictiveness). As the resentencing will not be a ministerial act and involves court discretion, the appellant must be present and represented by counsel. See Jordan v. State, 143 So.3d 335, 339 (Fla. 2014) (explaining that where the trial court has discretion regarding sentence imposition a defendant must be present); cf. Pucker v. State, 197 So.3d 1095, 1096 (Fla. 1st DCA 2016) (Anders appeal in which the court stated that upon remand the appellant need not be present because the court’s actions of correcting scrivener’s errors would be purely ministerial). The state *336may choose to again attempt to prove that the appellant meets the criteria for HFO enhancement. See Collins at 994.
REVERSED AND REMANDED.
ROBERTS, C.J., JAY and WINSOR, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Jordan v. State, 143 So. 3d 335 (Fla. 2014)
- Despart v. State, 884 So. 2d 328 (Fla. 5th DCA 2004)
- State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)
- Ducker v. State, 197 So. 3d 1095 (Fla. 1st DCA 2016)