Lowenthal v. State, 96-00746
| Decision Date | 19 September 1997 |
| Docket Number | No. 96-00746,96-00746 |
| Citation | 699 So.2d 319 |
| Parties | 22 Fla. L. Weekly D2239 Kenneth LOWENTHAL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Kendra D. Presswood, Assistant Public Defender, Bartow, for Appellant.
Kenneth Lowenthal, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.
In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the public defender has suggested several arguments, one of which has merit. Lowenthal also has filed a pro se brief discussing the same issues. We affirm on all issues which were raised except for the habitual violent felony offender sentence. Our independent review of the record reveals that the trial court erred by classifying Lowenthal as a habitual violent felony offender without substantiated proof of his prison release date.
Although the defense attorney agreed at the November 1995 sentencing hearing that Lowenthal qualified for this classification, there is no evidence in this record of the date of Lowenthal's release from prison. It was error for the trial court to make this determination without sufficient evidence before the court. In Reynolds v. State, 674 So.2d 180 (Fla. 2d DCA 1996), this court noted that the state must furnish proof of the following three dates: (1) the date of the current felony offense, (2) the date of the conviction for the last prior felony, and (3) the date that the defendant was released from prison imposed for the last felony conviction, regardless of whether the defendant was released on parole or community control. See also § 775.084(1)(a)2, Fla. Stat. (1995). Furthermore, in Moore v. State, 608 So.2d 926, 927 (Fla. 2d DCA 1992), this court held that defense counsel's general statements that the defendant could be classified as a habitual felony offender did not waive the duty of the trial court to make specific findings on the record that the defendant met the requirements.
Accordingly, we vacate the habitual violent felony offender sentence and remand for a new sentencing hearing. Because the defense failed to object to the trial court's classification of Lowenthal as a habitual violent felony offender on the grounds that the court did not have sufficient evidence of the release date, the trial court, on remand, should permit ...
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Brown v. State
...the date the defendant was released from prison or other supervision imposed for the last felony conviction. See Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997). In challenging the sufficiency of the State's proof, Brown cites Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), in w......
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Yisrael v. State
...hearsay. See § 90.802, Fla. Stat. (2004) ("Except as provided by statute, hearsay evidence is inadmissible."); Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997) ("[T]he state must furnish proof of ... the date that the defendant was released from prison imposed for the last felony c......
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Yisrael v. State
...hearsay. See § 90.802, Fla. Stat. (2004) ("Except as provided by statute, hearsay evidence is inadmissible."); Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997) ("The state must furnish proof of ... the date that the defendant was released from prison imposed for the last felony con......
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Osborne v. State
...the date the defendant was released from any prison term or supervision imposed for the last felony conviction. See Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997). Id. at 318. Additionally, the felony for which the defendant is to be sentenced and one of the two prior felony conv......