Grimes v. State, No. 91-3329

CourtCourt of Appeal of Florida (US)
Writing for the CourtKAHN
Parties18 Fla. L. Week. D240 Ural GRIMES, Jr., Appellant, v. STATE of Florida, Appellee.
Decision Date31 December 1992
Docket NumberNo. 91-3329

Page 996

616 So.2d 996
18 Fla. L. Week. D240
Ural GRIMES, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 91-3329.
District Court of Appeal of Florida,
First District.
Dec. 31, 1992.
As Corrected on Grant of Clarification Feb. 5, 1993.

Page 997

Spiro T. Kypreos, Pensacola, for appellant.

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

KAHN, Judge.

Ural Grimes, Jr. was charged by information with eight counts of robbery with a deadly weapon, one count of dealing in stolen property, and one count of grand theft auto. After Mr. Grimes entered a plea of nolo contendere to the charges, the lower court sentenced him to concurrent life sentences (non-habitual offender) for the counts of robbery with a deadly weapon, a concurrent thirty year sentence as an habitual offender for dealing in stolen property, and a concurrent ten year sentence as an habitual offender for grand theft auto. On appeal, Grimes maintains that the lower court erred in failing to make findings of fact pursuant to section 775.084(1)(a), Florida Statutes (1989), before sentencing him as an habitual offender and the written sentence does not conform to the oral pronouncement of sentence. We reverse.

At the sentencing hearing, the lower court made no findings as to whether the convictions necessary for habitual offender sentencing were pardoned or set aside as required by section 775.084(1)(a), Florida Statutes (1989), before sentencing Grimes as an habitual offender for dealing in stolen property and grand theft auto. Despite the fact that Grimes did not raise these matters affirmatively, the failure to make these statutory findings is per se reversible error. Jones v. State, 606 So.2d 709 (Fla. 1st DCA Oct. 14, 1992); Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991), review pending, No. 79,535. Accordingly, we reverse the sentences for dealing in stolen property and grand theft auto and remand for resentencing in compliance with section 775.084, Florida Statutes (1989). We certify to the supreme court the same question certified in Jones.

We note that robbery with a deadly weapon is a first degree felony punishable by life. Sec. 812.13(2)(a), Fla.Stat. (1989). At the sentencing hearing which took place on October 8, 1991, the trial court indicated that he was not sure if the question had yet been resolved concerning whether habitual offender punishment was available in the case of a first degree felony punishable by life. The trial court then stated: "And in any event, I don't think I have to get into that on those counts [the first degree felonies punishable by life]. As to the other counts, the grand theft and the dealing in stolen property, I am going to find that Mr. Grimes is a habitual felony offender." As to these other counts, the trial court classified Grimes as an habitual felony offender and sentenced him accordingly. These sentences, of course, must be revisited as indicated above.

As to the first degree felonies punishable by life, the trial court, having made the statement set out previously, sentenced Grimes to eight life terms to be served concurrently. The written judgment prepared by the clerk, however, indicates: "The defendant is adjudged a habitual offender and has been sentenced to an extended term and sentence in accordance with the provisions of F.S. 775.084(4)(a). The requisite findings by the court are set forth in a separate order or stated on the record in open court." The state concedes that the written sentence did not conform to the oral pronouncement, and accordingly,

Page 998

Grimes must be resentenced on these eight counts.

The state has suggested, however, that pursuant to Burdick v. State, 594 So.2d 267 (Fla.1992), the trial court should now be allowed to treat Grimes as an habitual offender as to these eight counts. The state has suggested in its brief, without citation of authority, that the habitual offender sentence on these counts "would not be an increase in sentence as the sentence would be...

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11 practice notes
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • 15 Diciembre 1994
    ...is "necessary for the protection of the public." Sec. 775.084(4)(c), Fla.Stat. (1989); e.g., Burdick, 594 So.2d at 267; Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1993); King, 597 So.2d at 314; Donald v. State, 562 So.2d 792, 795 (Fla. 1st DCA 1990) ("court has the option, under section 7......
  • Hardy v. Jones, Case No. 4:13cv137-RH/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 15 Octubre 2015
    ...decided not to find habitual offender status after considering the State's request and presentation of evidence. Grimes v. State, 616 So. 2d 996 (Fla. 1st DCA 1992); Martinez v. State, 625 So. 2d 1306 (Fla. 3d DCA 1993). Because this constitutes an "acquittal" of the habitual offender sente......
  • London v. State, No. 92-2048
    • United States
    • Court of Appeal of Florida (US)
    • 24 Junio 1993
    ...equal protection), rev. denied, 564 So.2d 1086 (1990). The issue of separation of powers has also been resolved in Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992), and Johnson v. State, 612 So.2d 689 (Fla. 1st DCA 1993), wherein this court held that the trial court was not required to cl......
  • White v. State, No. 91-3959
    • United States
    • Court of Appeal of Florida (US)
    • 17 Mayo 1993
    ...to section 775.084(1)(b) and (4)(b), Florida Statutes (1989). See Johnson v. State, 612 So.2d 689 (Fla. 1st DCA1993); Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992). Cf. King v. State, 597 So.2d 309, 314-15 (Fla. 2d DCA) (en banc) (finding trial court lacks discretion in determination o......
  • Request a trial to view additional results
11 cases
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • 15 Diciembre 1994
    ...is "necessary for the protection of the public." Sec. 775.084(4)(c), Fla.Stat. (1989); e.g., Burdick, 594 So.2d at 267; Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1993); King, 597 So.2d at 314; Donald v. State, 562 So.2d 792, 795 (Fla. 1st DCA 1990) ("court has the option, under section 7......
  • Hardy v. Jones, Case No. 4:13cv137-RH/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 15 Octubre 2015
    ...decided not to find habitual offender status after considering the State's request and presentation of evidence. Grimes v. State, 616 So. 2d 996 (Fla. 1st DCA 1992); Martinez v. State, 625 So. 2d 1306 (Fla. 3d DCA 1993). Because this constitutes an "acquittal" of the habitual offender sente......
  • London v. State, No. 92-2048
    • United States
    • Court of Appeal of Florida (US)
    • 24 Junio 1993
    ...equal protection), rev. denied, 564 So.2d 1086 (1990). The issue of separation of powers has also been resolved in Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992), and Johnson v. State, 612 So.2d 689 (Fla. 1st DCA 1993), wherein this court held that the trial court was not required to cl......
  • White v. State, No. 91-3959
    • United States
    • Court of Appeal of Florida (US)
    • 17 Mayo 1993
    ...to section 775.084(1)(b) and (4)(b), Florida Statutes (1989). See Johnson v. State, 612 So.2d 689 (Fla. 1st DCA1993); Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992). Cf. King v. State, 597 So.2d 309, 314-15 (Fla. 2d DCA) (en banc) (finding trial court lacks discretion in determination o......
  • Request a trial to view additional results

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