Summary
resentencing ordered because HVFO sentencing should not have been imposed where none of defendant's current crimes were enumerated as qualifying offenses in section 775.084, Florida Statutes
Summary of this case from State v. CollinsOpinion
No. 3D01-2335.
April 24, 2002.
An Appeal under Fla.R.App.P. 9.141(b)(2) from the Circuit Court of Miami Dade County, Stanford Blake, Judge.
Nathaniel A. Benjamin, in proper person.
Robert A. Butterworth, Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
Before COPE, FLETCHER, and SHEVIN, JJ.
Nathaniel A. Benjamin appeals from the lower court's denial of post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm Benjamin's convictions but remand for resentencing.
Benjamin was charged with burglary of an unoccupied structure, petit theft, and criminal mischief. Benjamin pleaded guilty and was adjudicated an habitual violent felony offender (HVFO). However, as Benjamin asserts and as the State concedes, none of the crimes for which Benjamin presently serves his sentence are of the enumerated felonies which qualify him for HVFO designation pursuant to Florida Statute 775.084 (1997). In addition, the only prior felony committed by Benjamin that would qualify him as a violent offender under the statute was committed well beyond the time frame for consideration as an HVFO predicate offense.
Although it appears from the record that Benjamin raised the HVFO issue in a 1999 motion for corrected sentence, and the trial court granted that specific relief, the record also indicates that Benjamin's HVFO sentencing designation currently remains unchanged. Accordingly, we remand for the trial court to vacate Benjamin's current sentencing designation as an Habitual Violent Felony Offender and resentence him as an Habitual Offender, as previously announced by the trial court. We affirm all remaining issues.