BOBBY WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the judgment of guilt for aggravated assault is affirmed, the sentence imposed must be vacated because it was imposed as a recidivist sentence without proper statutory procedure.
Appellant pleaded nolo contendere to aggravated assault and was sentenced to ten years. The sentence was imposed as a recidivist sentence, but no sepa…
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HOBSON, Judge.
Appellant was charged by information with the crime of assault with intent to commit murder in the first degree. His plea of nolo contendere to the lesser included offense of aggravated assault was accepted by the trial judge, and a pre-sen-tence investigation was ordered. He admitted that he had served time in the state penitentiary for first degree murder and robbery.
Subsequently he appeared before an acting circuit judge for sentencing, was adjudged guilty of aggravated assault and-sentenced to a term of ten years in the Division of Corrections.
Aggravated assault is a felony of the third degree, F.S. § 784.04 F.S.A,, and is ordinarily punishable by a maximum of five years, F.S. § 775.082 F.S.A. Appellant was obviously sentenced as a recidivist.
No separate information was filed' setting forth the prior convictions and no proceedings were had in accordance with the provisions of F.S. § 775.11 and § 775.-084 F.S.A. The judgment appealed is affirmed,' but the. sentence is hereby vacated and the cause remanded for proper sentencing, without prejudice to the state’s right to subsequently proceed pursuant to the provisions of F.S. § 775.11 F.S.A. as it may be advised. Wright v. State, Fla.App., 291 So. 2d 118, opinion filed March 1, 1974.
Remanded with directions.
MANN, C. J., and GRIMES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moore v. State, 343 So. 2d 601 (Fla. 1977)…BOYD, Justice, dissenting. I respectfully dissent to the majority opinion and would adopt the statutory construction stated in Wright v. State, 291 So. 2d 129 (Fla. 2d DCA 1974). Section 775.084 contained in both the statutes of 1973 and 1975 permits judges to impose criminal penalties for being habitual criminals. Section 775.11 in the 1973 and 1975 statutes provided the same constitutional standards fo…1 / 2
Authorities Cited
- Wright v. State, 291 So. 2d 118 (Fla. 2d DCA 1974)