Jones v. State, No. 91-2961

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS; ALLEN; ALLEN
Citation606 So.2d 709
Docket NumberNo. 91-2961
Decision Date14 October 1992
Parties17 Fla. L. Week. D2375 William V. JONES, Appellant, v. STATE of Florida, Appellee.

Page 709

606 So.2d 709
17 Fla. L. Week. D2375
William V. JONES, Appellant,
v.
STATE of Florida, Appellee.
No. 91-2961.
District Court of Appeal of Florida,
First
District.
Oct. 14, 1992.

Page 710

Nancy A. Daniels, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Carolyn J. Mosley, Tallahassee, for appellee.

EN BANC

JOANOS, Chief Judge.

The appellant raises one issue in this appeal. Appellant complains that the trial court erred in imposing habitual felony offender sentences without finding, under section 775.084(1)(a)4., Florida Statutes (1989), that the predicate convictions required for imposition of the habitual offender sentences had not been set aside in post-conviction proceedings. We reverse.

Appellant was convicted of attempted burglary of a dwelling and possession of burglary tools. The state sought to have appellant sentenced as an habitual offender. At the sentencing hearing the State presented evidence that appellant had two prior felony convictions, including the dates of those convictions. The State also presented evidence that appellant had not been pardoned for any of the previous convictions. The trial court made the following findings:

[U]nder the record presented Mr. Jones is a habitual offender. He has the appropriate prior number of convictions. At least two of those convictions are for burglar[y], and the other for introduction of contraband into a state facility. Those are all felonies, they are timely in the sense of the way they've been presented and have not been excused by the document presented over the signature of the then governor of the state.

Appellant was adjudicated to be a habitual felony offender and sentenced to consecutive five year prison sentences.

Page 711

Our analysis starts with the habitual felony offender statute. Section 775.084 provides in pertinent part:

(1) As used in this act:

(a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:

1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses;

2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony or other qualified offense of which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;

3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and

4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.

. . . . .

(3) ... The procedure shall be as follows:

. . . . .

(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.

As noted, appellant's sole point on appeal is that the trial court failed to make the finding required by section 775.084(1)(a)4., i.e., that his prior convictions had not been set aside in any post-conviction proceedings.

In our opinion, the mandate of section 775.084(1)(a) is unequivocal. The sentencing court must make a specific finding that the defendant meets each of the criteria of the statute. Walker v. State, 462 So.2d 452, 454 (Fla.1985); Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA1991), review pending, Case No. 79,535. The failure to make such findings constitutes reversible error. Id. The supreme court's opinion in Walker is particularly instructive. The sole issue on appeal in that case was the trial court's alleged failure to "state, as required by statute, the findings upon which he based [the] decision to [impose an habitual offender sentence]." The supreme court rejected the State's argument that an objection was required stating:

We hold that the findings required by section 775.084 are critical to the statutory scheme and enable meaningful appellate review of these types of sentencing decisions. Without these findings, the review process would be difficult, if not impossible. It is clear that the legislature intended the trial court to make specific findings of fact when sentencing a defendant as a habitual offender.

Moreover, the supreme court specified that:

Given this mandatory statutory duty, the trial court's failure to make such findings is appealable regardless of whether such failure is objected to at trial.

Id. at 454.

In this case there is no question that the trial court did not make the finding required by section 775.084(1)(a)4. The State's sole argument in opposition to appellant's argument is that appellant "admitted, at least by implication, that he qualified for sentencing as an habitual offender." In support of that argument the State refers to the following excerpt from the sentencing hearing:

THE COURT: Is he contesting either of these prior--

[DEFENSE COUNSEL]: Neither of those two, Your Honor, is that correct, Mr. Jones?

[MR. JONES]: Right.

THE COURT: All right. That's a sufficient factual basis for at least the state to request habitual offender.

In our opinion that is not an admission, even implicitly, that appellant qualified as an habitual offender. It is an admission that the appellant had two prior felony

Page 712

convictions. It was not an admission that those convictions had not been set aside. Under section 775.084(1)(a) the trial court is required to make four separate findings. One of those findings is that appellant has two prior felony convictions. Another separate finding is that those convictions have not been...

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23 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. State, 606 So.2d 709 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. S......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. State, 606 So.2d 709 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. S......
  • Spriggs v. State, No. 91-1199
    • United States
    • Court of Appeal of Florida (US)
    • March 17, 1993
    ...16, 1992) there is no indication that a plea agreement played a role in the court's reasoning. That opinion cited Jones v. State, 606 So.2d 709 (Fla. 1st DCA 1992), where the court held that the failure to contest evidence of prior convictions is not the same as admitting that the convictio......
  • Grimes v. State, No. 91-3329
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 1992
    ...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 sent......
  • Request a trial to view additional results
23 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. State, 606 So.2d 709 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. S......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. State, 606 So.2d 709 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. S......
  • Spriggs v. State, No. 91-1199
    • United States
    • Court of Appeal of Florida (US)
    • March 17, 1993
    ...16, 1992) there is no indication that a plea agreement played a role in the court's reasoning. That opinion cited Jones v. State, 606 So.2d 709 (Fla. 1st DCA 1992), where the court held that the failure to contest evidence of prior convictions is not the same as admitting that the convictio......
  • Grimes v. State, No. 91-3329
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 1992
    ...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 sent......
  • Request a trial to view additional results

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