Lewis v. State, s. 92-4010 and 92-4011

• Decision Date: 27 April 1994
• Docket Number: Nos. 92-4010 and 92-4011,s. 92-4010 and 92-4011
• Citation: 636 So.2d 154
• Parties: 19 Fla. L. Weekly D932 David Randall LEWIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 154

636 So.2d 154

19 Fla. L. Weekly D932

David Randall LEWIS, Appellant, v. STATE of Florida, Appellee.

Nos. 92-4010 and 92-4011.

District Court of Appeal of Florida,

First District.

April 27, 1994.

Sher L. Allan of Isler & Banks, P.A., Panama City, for appellant.

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

WEBSTER, Judge.

In these two direct criminal appeals, appellant seeks review of his sentences. In both cases, appellant argues that he was improperly sentenced as an habitual felony offender. We affirm.

In circuit court case number 89-385, appellant had originally entered a plea of no contest to the charge of aggravated battery, for which he was placed on probation. Appellant subsequently admitted that he had violated the conditions of his probation, having been charged with the new offenses of burglary of a structure and kidnapping in circuit court case number 91-1187. In case number 89-385, appellant's probation was revoked and he was placed on community control. In case number 91-1187 (appellant having pleaded no contest to the charges), the trial court deferred sentencing to see whether appellant successfully completed the term of community control imposed in case number 89-385. An express condition of the plea agreement in the two cases read as follows:

Defendant acknowledges that should he violate the terms of his Community Control, he shall be sentenced in Case No. 91-1187G to no more than 10 years DOC (Prison) as a Habitual Offender, should he qualify for Habitual Offender treatment. Defendant further acknowledges that the Court may also impose sentence on the violation of Community Control consecutive to any sentence in Case No. 91-1187G, in the event of any alleged violation.

A little more than a month after appellant had been placed on community control, he was charged with a violation of his conditions. After a hearing, the trial court found that appellant had violated the conditions of his community control. In case number 91-1187, the state presented uncontradicted evidence establishing that appellant qualified as an habitual felony offender. Accordingly, pursuant to the earlier plea agreement, the trial court sentenced appellant in case number 91-1187 as an habitual felony offender to ten years in prison on each count, the two sentences to run concurrent with each other; and in case number 89-385 to twenty months on community control, to be served consecutively to the sentences in case number 91-1187.

We find it unnecessary to address appellant's challenge to the community control sentence imposed in case number 89-385, because it is apparent from the record that appellant was not sentenced as an habitual felony offender in that case. The trial court did impose habitual felony offender sentences in case number 91-1187. Appellant argues that those sentences are illegal because he was never served with written notice of the state's intent to seek imposition of habitual felony offender sentences, as required by statute. Sec. 775.084(3)(b), Fla.Stat. (1989). We disagree.

It is true that no written notice of the state's intent to seek habitual felony offender sentences appears in the record for case number 91-1187. (It appears that a notice intended for that case was erroneously prepared with a reference to case number 89-385, causing it to be placed in that file.) However, the supreme...