Banes v. State
Citation | 597 So.2d 975 |
Decision Date | 13 May 1992 |
Docket Number | No. 91-0441,91-0441 |
Parties | Jerome BANES, Appellant, v. STATE of Florida, Appellee. 597 So.2d 975, 17 Fla. L. Week. D1217 |
Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Broward County; Arthur J. Franza, Judge.
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.
We affirm appellant's conviction. We reject appellant's argument that the record affirmatively shows a vindictive motivation on the part of the trial court when it sentenced him as a habitual offender. However, we reverse appellant's sentence as a habitual offender because the trial court failed to make the requisite findings pursuant to section 775.084(1)(a), Florida Statutes (1989). See Rolle v. State, 586 So.2d 1293 (Fla. 4th DCA 1991); Simon v. State, 589 So.2d 381 (Fla. 4th DCA 1991); Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1992). We also adopt the question certified by the First District Court of Appeal in Anderson, and certify it as one of great public importance:
Does the holding in Eutsey v. State, 383 So.2d 219 (Fla.1980) that the state has no burden of proof as to whether the convictions necessary for habitual felony offender sentencing have been pardoned or set aside, in that they are "affirmative defenses available to [a defendant]," Eutsey at 226, relieve the trial court of its statutory obligation to make findings regarding those factors, if the defendant does not affirmatively raise, as a defense, that the qualifying convictions provided by the state have been pardoned or set aside?
On remand, the trial court may again sentence appellant as a habitual offender provided it makes findings, supported by evidence, as required by section 775.084(1)(a). See Meehan v. State, 526 So.2d 1083 (Fla. 4th DCA 1988).
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
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Hierro v. State, 90-2098
...relief" findings where, as here, the defendant has not asserted either of those affirmative defenses. Compare Banes v. State, 597 So.2d 975 (Fla. 4th DCA 1992) (question certified); Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992) (question certified), review pending, No. 79,728 (Fla.1992......
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Faison v. State, 91-3169
...as an habitual offender provided it makes findings, supported by evidence, as required by section 775.084(1)(a). Banes v. State, 597 So.2d 975 (Fla. 4th DCA 1992); Meehan v. State, 526 So.2d 1083 (Fla. 4th DCA 1988). In all other respects the judgment appealed from is affirmed. GUNTHER, J.,......
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