Summary
confirming that, prior to the enactment of subsection, habitualization did not have to be based on sequential convictions or offenses
Summary of this case from Ruiz v. StateOpinion
No. 5D00-3518.
Opinion filed May 11, 2001.
Appeal from the Circuit Court for Seminole County, Alan A. Dickey, Judge.
Affirmed.
Arthur Barnhill, Mayo, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
Arthur Barnhill appeals the denial of his motion for postconviction relief and correction. Barnhill was convicted in April, 1983 of robbery with a weapon and sentenced to twenty-five years in prison. Subsequently, in September, 1983, Barnhill was convicted in a separate case of attempted robbery with a firearm and aggravated battery with a firearm, and was sentenced as an habitual offender to two concurrent thirty-year terms of imprisonment. In habitualizing Barnhill, the trial court used the robbery with a firearm conviction as the predicate felony offense. Barnhill now argues that he did not qualify as a habitual offender because his offenses were not sequential, i.e., the predicate April, 1983 robbery offense was committed after the date of the September, 1983 offenses. Because we find that sequential convictions were not required at the time that Barnhill was sentenced, we affirm.
At the time of Barnhill's conviction, the habitual offender statute required only one prior offense in order to habitualize a defendant. See § 775.084, Fla. Stat. (1977).
The current version of the habitual offender statute requires sequential convictions. See § 775.084(5), Fla. Stat. (1995) (providing that to be a "prior felony" for the purpose of habitualization, the offense must "have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony"); Smith v. State, 766 So.2d 1257, 1257 (Fla. 5th DCA 2000) (noting that "[a] habitual felony offender sentence cannot be predicated upon an offense or conviction which occurred after the current offense for which the defendant is being sentenced"); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997) (stating that in order to constitute a prior offense for purposes of habitualization, the offense must have been committed prior to the offense resulting in the enhanced sentence). However, at the time Barnhill was sentenced in 1983, the habitual offender statute did not have this requirement.Barnhill was sentenced under the 1977 version of the habitual offender statute, which provided, in relevant part, that a defendant could be designated an habitual felony offender if the court found that the defendant had "[p]reviously been convicted of a felony in this state . . . [and] [t]he felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted. . . ." § 775.084(1)(a)1., Fla. Stat. (1977). The plain meaning of the language of the statute only requires the trial court to find that the defendant committed the offense that he is being sentenced on within five years of the prior offense before his sentencing as a habitual offender. See § 775.084(2), Fla. Stat. (1977); Smith v. State, 461 So.2d 995 (Fla. 5th DCA 1984). The statute does not specify a prerequisite that a defendant must commit the offense forming the basis of his habitual violent felony offender status prior to committing the second offense.
In State v. Barnes, 595 So.2d 22, 24 (Fla. 1992) the supreme court held that sequential convictions were not required, based on the plain meaning the 1988 version of the habitual offender statute. Likewise, the 1977 version of the statute did not provide a requirement for sequential convictions. Courts do not have authority to change the plain meaning of a statute where the Legislature has unambiguously expressed its intent. As a result, Barnhill's claim is without merit and must be denied.
Cobb and Sawaya, JJ., Concur.