Grey v. State, 77-1655
Decision Date | 30 August 1978 |
Docket Number | No. 77-1655,77-1655 |
Citation | 362 So.2d 425 |
Parties | Henry Julius GREY, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Jack A. Nants, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a conviction of involuntary sexual battery while the victim was physically helpless to resist and enhanced sentence as an habitual offender. We affirm the judgment, but remand for resentencing. The trial court failed to make findings as required under Florida Statute 775.084.
Florida Statute 775.084(3) states:
". . . the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term . . . and if the defendant is an habitual felony offender . . ."
Florida Statute 775.084(3)(d):
"Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence . . ."
Florida Statute 775.084(3)(c):
"All evidence presented shall be presented in open court with full right of confrontation, cross-examination, and representation by counsel."
Unless a finding that the enhanced sentence is necessary to protect the public from further criminal activity by Defendant is made, an enhanced sentence may not be imposed under the statute. Such a finding must be based on a preponderance of evidence.
Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976) states:
The trial court based its finding that Defendant should be taken off the streets upon Defendant's four prior felony convictions presented at the sentencing by way of argument. Only the judgment and sentence on the escape conviction were admitted into evidence. The trial...
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Adams v. State
...traditional way," but reversing for the court's failure to "specify the evidence" justifying the extended sentence; and Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978), acknowledging that defendant's record of four prior felony convictions "presented at the sentencing by way of argument" m......
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Shead v. State, s. 77-2443
..."is necessary for the protection of the public from further criminal activity." § 775.084(4)(a), Fla.Stat. (1975). See Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978). Probation, on the other hand, may only be imposed "(i)f it appears to the court upon a hearing of the matter that the defe......
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