Eichhorn v. State
| Decision Date | 06 August 1980 |
| Docket Number | No. 78-2188,78-2188 |
| Parties | James Richard EICHHORN, Appellant, v. STATE of Florida, Appellee. /T4-241. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Jon May, Asst. Public Defender, Lorrie Robinson, Legal Intern, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Michael W. Strickland, Legal Intern, and Marc E. Kirk, West Palm Beach, for appellee.
Appellant, James Eichhorn, was convicted of possession of more than 5 grams of cannabis, and the trial court sentenced him as an habitual felony offender.
At the sentencing hearing the court determined that due to prior felony convictions within five years of his present adjudication, the defendant would be exposed to the enhanced punishment provision, section 775.084, Florida Statutes (1979). The defendant made a lengthy mitigating statement. Prior to the court imposing sentence, the prosecuting attorney correctly summarized cases in which courts considered imposing the enhanced penalty. The record must reflect the basis for the enhanced penalty, and it must appear by a preponderance of the evidence that the enhanced sentence is necessary to protect the public from the criminal activity of the defendant. Jones v. State, 384 So.2d 956 (Fla.5th DCA June 18, 1980); Bell v. State, 382 So.2d 107 (Fla.5th DCA 1980). However, the trial judge did not state in the record why he was sentencing the defendant to the greater term. Section 775.084, Florida Statutes (1979) subsection (3) provides In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) . . . .
He only stated that there were aggravating circumstances in the case at bar and that the defendant would be sentenced under the enhanced penalty statute to ten years with probation after serving four.
In Chukes v. State, 334 So.2d 289 (Fla.4th DCA 1976), the court stated:
It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.084 F.S. 1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court's findings, a defendant's right to appellate review would be effectively stifled.
Id. at 290. S...
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Parker v. State, 81-940
...that the record is sufficient to support the enhanced sentence. Jones v. State, 387 So.2d 401 (Fla. 5th DCA 1980); Eichhorn v. State, 386 So.2d 604 (Fla. 5th DCA 1980); Stewart v. State, 385 So.2d 1159 (Fla. 2d DCA 1980); McClain v. State, 356 So.2d 1256 (Fla. 2d DCA Affirmed. 1 The rule pr......
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Johnson v. State, 84-1512
...452 (Fla.1985); Little v. State, 440 So.2d 603 (Fla. 3d DCA 1983); Ruiz v. State, 407 So.2d 1042 (Fla. 3d DCA 1981); Eichhorn v. State, 386 So.2d 604 (Fla. 5th DCA 1980); Adams v. State, 376 So.2d 47 (Fla. 1st DCA The second contention raised by the appellant is that the trial court did not......
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Wright v. State, 85-59
...the trial court did not err in considering the defendant's prior record which was read in open court by the state. See Eichhorn v. State, 386 So.2d 604 (Fla. 5th DCA 1980). We affirm defendant's convictions; however, since the trial court did not make the necessary findings of fact to indic......
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Ruiz v. State, 80-1305
...activity, and the basis for this finding must appear in the record. See Eutsey v. State, 383 So.2d 219 (Fla.1980); Eichhorn v. State, 386 So.2d 604 (Fla.5th DCA 1980); Ruiz v. State, 384 So.2d 723 (Fla.3d DCA 1980); Adams v. State, 376 So.2d 47 (Fla.1st DCA 1979). Because the trial court di......