Hoefert v. State, No. 86-258

CourtCourt of Appeal of Florida (US)
Writing for the CourtCAMPBELL
Citation509 So.2d 1090,12 Fla. L. Weekly 1250
Docket NumberNo. 86-258
Decision Date13 May 1987
Parties12 Fla. L. Weekly 1250 Robert Carl HOEFERT, Appellant, v. STATE of Florida, Appellee.

Page 1090

509 So.2d 1090
12 Fla. L. Weekly 1250
Robert Carl HOEFERT, Appellant,
v.
STATE of Florida, Appellee.
No. 86-258.
District Court of Appeal of Florida,
Second District.
May 13, 1987.
Rehearing Denied July 15, 1987.

Page 1091

James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kim W. Munch, Asst. Atty. Gen., Tampa, for appellee.

CAMPBELL, Acting Chief Judge.

Appellant raises two issues on his appeal. Because we find merit only in appellant's sentencing issue, we must affirm appellant's convictions, but remand for resentencing as discussed herein.

Appellant was charged with attempted sexual battery and kidnapping. He was tried by jury and was found guilty of attempted sexual battery and false imprisonment. As stated, we find no error in his convictions.

Under the sentencing guidelines, appellant's total recommended sentence was a term of imprisonment of seventeen to twenty-two years. Both of the offenses for which appellant was convicted constitute third degree felonies, each punishable by a term of imprisonment not exceeding five years. §§ 775.082(3)(d), 777.04(4)(c), 787.02(2), 794.011(5), Fla.Stat. (1983). Since appellant's recommended guidelines sentence exceeded the statutory maximum, the trial judge adjudged appellant to be a habitual offender so as to enhance the statutory maximum punishment for the third degree felonies for which appellant was convicted. The trial judge then imposed twenty-year prison sentences for each conviction to run concurrently.

Appellant argues only two errors in regard to his enhanced sentences. His first argument is that by imposing twenty-year sentences for each conviction, the trial judge exceeded the statutory maximum even though the maximum sentence had been enhanced by utilization of the habitual offender statute. We agree. Section 775.084(4)(a)(3), Florida Statutes (1983) provides for the enhancement of punishment for a third degree felony only to a term of imprisonment not exceeding ten years, rather than the twenty years the trial judge imposed for each conviction.

Appellant's only other argument related to his sentences is that the trial judge's reasons for adjudging appellant a habitual offender were not sufficiently specific to comply with section 775.084(3), Florida Statutes (1983). Appellant suggests that while there was some evidence in the record to support the trial judge's conclusion that an extended term of imprisonment was necessary as provided for in section 775.084, there were no such written conclusions supported by the essential findings of fact. Walker v. State, 462 So.2d 452 (Fla.1985); Hopkins v. State, 463 So.2d 521 (Fla. 3d DCA 1985). We agree and remand for resentencing.

Page 1092

If the trial judge is able, by written findings evidenced by specific record facts, to support the conclusion that appellant should be sentenced as a habitual offender, appellant may be so resentenced, but for a term of imprisonment not to exceed ten years for each conviction. If appellant is so resentenced, the trial judge could impose the sentences for each conviction to run consecutive to the other.

Because we are remanding with permission for the trial judge to again adjudicate appellant a habitual offender if the proper findings are made, we must address an issue not raised by appellant and, in our opinion, left unanswered in Whitehead...

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25 practice notes
  • Hall v. State, No. BQ-408
    • United States
    • Court of Appeal of Florida (US)
    • August 5, 1987
    ...section 775.082 as a predicate for imposition of a sentence that either falls within the guidelines recommended range, Hoefert v. State, 509 So.2d 1090 (Fla. 2nd DCA 1987); Winters v. State, 500 So.2d 303 (Fla. 1st DCA 1987); Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1987), or departs fro......
  • Inscho v. State, No. 87-437
    • United States
    • Court of Appeal of Florida (US)
    • February 4, 1988
    ...3d DCA 1987); King v. State, 511 So.2d 1131 (Fla. 4th DCA 1987); Hall v. State, 511 So.2d 1038 (Fla. 1st DCA 1987); Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987); Smith v. Wainwright, 508 So.2d 768 (Fla. 2d DCA 1987); Washington v. State, 508 So.2d 565 (Fla. 2d DCA 1987); Hester v. St......
  • Scott v. State, No. 86-2322
    • United States
    • Florida District Court of Appeals
    • February 9, 1988
    ...513 So.2d 1388 (Fla. 3d DCA 1987); and Bellinger v. State, 513 So.2d 732 (Fla. 3d DCA 1987), and do so again. Accord Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987). We certify the same question framed in Condiles to the supreme Affirmed. --------------- 1 At the time of the crime, the ......
  • McMillan v. State, No. 87-1933
    • United States
    • Court of Appeal of Florida (US)
    • December 16, 1987
    ...range. See Condiles v. State, 512 So.2d 331 (Fla.3d DCA 1987); King v. State, 511 So.2d 1131 (Fla.4th DCA 1987); Hoefert v. State, 509 So.2d 1090 (Fla.2d DCA 1987); Smith v. Wainwright, 508 So.2d 768 (Fla.2d DCA 1987); Winters v. State, 500 So.2d 303 (Fla.1st DCA 1986). Here the sentence im......
  • Request a trial to view additional results
25 cases
  • Hall v. State, No. BQ-408
    • United States
    • Court of Appeal of Florida (US)
    • August 5, 1987
    ...section 775.082 as a predicate for imposition of a sentence that either falls within the guidelines recommended range, Hoefert v. State, 509 So.2d 1090 (Fla. 2nd DCA 1987); Winters v. State, 500 So.2d 303 (Fla. 1st DCA 1987); Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1987), or departs fro......
  • Inscho v. State, No. 87-437
    • United States
    • Court of Appeal of Florida (US)
    • February 4, 1988
    ...3d DCA 1987); King v. State, 511 So.2d 1131 (Fla. 4th DCA 1987); Hall v. State, 511 So.2d 1038 (Fla. 1st DCA 1987); Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987); Smith v. Wainwright, 508 So.2d 768 (Fla. 2d DCA 1987); Washington v. State, 508 So.2d 565 (Fla. 2d DCA 1987); Hester v. St......
  • Scott v. State, No. 86-2322
    • United States
    • Florida District Court of Appeals
    • February 9, 1988
    ...513 So.2d 1388 (Fla. 3d DCA 1987); and Bellinger v. State, 513 So.2d 732 (Fla. 3d DCA 1987), and do so again. Accord Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987). We certify the same question framed in Condiles to the supreme Affirmed. --------------- 1 At the time of the crime, the ......
  • McMillan v. State, No. 87-1933
    • United States
    • Court of Appeal of Florida (US)
    • December 16, 1987
    ...range. See Condiles v. State, 512 So.2d 331 (Fla.3d DCA 1987); King v. State, 511 So.2d 1131 (Fla.4th DCA 1987); Hoefert v. State, 509 So.2d 1090 (Fla.2d DCA 1987); Smith v. Wainwright, 508 So.2d 768 (Fla.2d DCA 1987); Winters v. State, 500 So.2d 303 (Fla.1st DCA 1986). Here the sentence im......
  • Request a trial to view additional results

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