Summary
resentencing ordered where record evidence did not support a finding that the defendant had requisite sequential convictions to qualify as HFO
Summary of this case from State v. CollinsOpinion
Case No. 1DO1-1004
Opinion filed November 14, 2002.
An appeal from the Circuit Court for Alachua County. Honorable Vernon C. Mize, Jr., Senior Judge.
Nancy A. Daniels, Public Defender, Second Judicial Circuit; G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Janelle C. Gillaspie, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
Appellant argues, this direct criminal appeal, the trial judge erred in sentencing him under the Habitual Felony Offender statute. Appellant argues that the State failed to establish a sufficient factual predicate during the sentencing hearing to allow the trial judge to make specific findings as to the basis for habitual felony offender sentencing as required by Section 775.084 (3)(a)4., Florida Statutes (1999). Appellant preserved this issue for appeal by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800 (b)(2). The State concedes the record evidence did not support a finding that Appellant had the requisite sequential convictions to qualify as a habitual felony offender. Accordingly, the sentence is vacated and this case is remanded to the trial court for the specific purpose of resentencing. On remand, the trial court may once again sentence appellant as a habitual felony offender, provided that the record evidence is legally sufficient to support such a sentence and the trial judge makes sufficient findings of fact to permit appellate review of its decision. Finding no merit in the appellants other points on appeal, we affirm the judgment below in all other respects.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART. BROWNING, LEWIS and POLSTON, JJ., CONCUR.