Fuller v. State, 90-2421

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ERVIN; JOANOS, C.J., and MINER
• Citation: 605 So.2d 1307
• Parties: 17 Fla. L. Week. D2326 Michael FULLER, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 90-2421,90-2421
• Decision Date: 09 October 1992

Page 1307

605 So.2d 1307 17 Fla. L. Week. D2326 Michael FULLER, Appellant,
v.
STATE of Florida, Appellee. No. 90-2421. District Court of Appeal of Florida,
First
District. Oct. 9, 1992.

Page 1308

Barbara M. Linthicum, Public Defender, Kathleen Stover, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., for appellee.

OPINION ON REMAND

ERVIN, Judge.

On appeal to this court, appellant, Michael Fuller, asserted the following four errors: (1) That the trial court erroneously sentenced him as a habitual felony offender, because the two predicate convictions had been entered on the same date; (2) that the trial court had improperly sentenced him as a habitual felony offender without making the requisite statutory findings; (3) that Florida's habitual felony offender statute, Section 775.084, Florida Statutes (1989), was violative of the constitutional provisions regarding due process, equal protection, and separation of powers, and because it was arbitrary, vague, and standardless; and (4) that the trial court erred by failing to conduct an oral plea colloquy. In Fuller v. State, 578 So.2d 887 (Fla. 1st DCA 1991), we reversed appellant's habitual felony offender sentence for lack of sequential convictions and certified the question to the supreme court, declined to consider issues two and three on mootness grounds, and affirmed as to the fourth issue. Our supreme court has now quashed our decision on the first issue, and remanded to this court for further proceedings consistent with the decision in State v. Barnes, 595 So.2d 22 (Fla.1992). See State v. Fuller, 595 So.2d 20 (Fla.1991).

Based upon Barnes, we now affirm appellant's first issue on the basis that sequential convictions are not required for imposition of a habitual felony offender sentence under section 775.084.

We conclude, however, that reversal and remand is required as to appellant's second issue, because the trial judge failed to make the necessary statutory findings for habitual felony offender sentencing. Section 775.084(3)(d) requires that "[e]ach of the findings required as the basis for such [habitual felony offender] sentence shall be found to exist by a preponderance of the evidence." Those findings, which are set out in section 775.084(1)(a), include, among other things, that the defendant has not received a pardon or postconviction relief concerning the predicate convictions. Secs. 775.084(1)(a)(3) & (4),...