Boyd v. State, 4D00-565.
| Decision Date | 03 January 2001 |
| Docket Number | No. 4D00-565.,4D00-565. |
| Citation | 776 So.2d 317 |
| Parties | Victor BOYD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
The issue presented in this case is whether the trial court erred in sentencing appellant, Victor Boyd, as a habitual felony offender over defense objection to appellee's failure to prove the date of appellant's release from prison. We agree with appellant in this case and reverse and remand for resentencing.
Prior to trial, the state filed a notice of its intent to declare appellant a habitual felony offender, habitual violent felony offender and/or violent career criminal. At the conclusion of the trial, the jury returned a verdict of guilty as charged in the Information on the charge of possession of a firearm by a convicted felon.
At the sentencing hearing, the court was presented with the presentence investigation report (PSI). The court asked defense counsel if there were any objections or corrections to the report. Defense counsel listed several items, but did not contend that appellant's release date from prison was inaccurate. The court made the presentence investigation report a court record, as Court Exhibit I.
The state moved to have appellant declared a habitual violent felony offender. Defense counsel argued that appellant did not qualify as a habitual violent felony offender, but conceded that he was "habitual qualified." The state presented three judgments of conviction (aggravated battery with a firearm, possession of cocaine, possession of cocaine and misdemeanors) which its fingerprint examiner testified contained fingerprints that matched appellant's known prints taken from the judgment of conviction in this case. Defense counsel conceded that none of these convictions had been reversed.
The state then sought to use the information contained in the PSI as evidence to prove that appellant's release date from prison was on December 27, 1996. Defense counsel objected to the evidence as to appellant's last release from prison on hearsay grounds. At the time of the sentencing hearing, the state had not yet received a letter from the Department of Corrections confirming appellant's release date from prison. The state argued that the PSI was sufficient since defense counsel had already stipulated to the correctness of the information contained in the PSI and that it was a part of the court record.
The court stated that it would take into consideration the fact that defense counsel previously indicated that there were no corrections to the PSI and asked that the state supplement the file with proof corroborating that there was a recent release date from prison on the date referred to in the PSI. The court stated that it had "no problem[ ] finding that the defendant qualifies as a habitual offender," and sentenced appellant as a habitual felony offender.
Before the trial court may impose a habitual felony offender sentence, it must find, based on record evidence, that the defendant has been previously convicted of any combination of two or more felonies and that the current felony occurred either (a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a prior felony conviction; or (b) within five years from the date of conviction for the defendant's last prior felony or within five years from the date of the defendant's release from prison or supervision for a prior felony offense. See § 775.084(1)(a)2.a., Fla.Stat. (1999); see also Sanders v. State, 765 So.2d 161 (Fla. 2d DCA 2000)
. Thus, the state must provide record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last felony conviction. See Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997).
The offense in this case was committed...
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State v. Collins
...to introduce evidence that proved defendant qualified for enhanced sentencing under section 775.084, Florida Statutes); Boyd v. State, 776 So.2d 317 (Fla. 4th DCA 2001) (resentencing ordered where State's evidence was insufficient to establish release date); Hemmy v. State, 835 So.2d 272 (F......
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...of Brown's eligibility for HFO classification and sentencing. Edison v. State, 848 So.2d 498, 499 (Fla. 2d DCA 2003); Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001) (reversing and remanding for resentencing, where the evidence was insufficient to prove defendant's release date from p......
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Gray v. State, 1D04-3826.
...sentence[]"). The State had the burden of proving Mr. Gray's release date based on competent evidence. See id.; cf. Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001) ("[T]he state must provide record evidence of ... the date the defendant was released from any prison term or supervision......
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Sutton v. State, 4D05-527.
...does so, the trial court may again sentence Sutton as a prison releasee reoffender and a habitual felony offender. See Boyd v. State, 776 So.2d 317 (Fla. 4th DCA 2001). Affirmed in Part; Reversed in Part and WARNER and GROSS, JJ., concur. ...