Moore v. State, 92-1616
| Decision Date | 07 April 1993 |
| Docket Number | No. 92-1616,92-1616 |
| Parties | 18 Fla. L. Week. D903 Eddie MOORE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Broward County; J. Leonard Fleet, Judge.
Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. General, West Palm Beach, for appellee.
Eddie Moore appeals his sentence as a habitual violent felony offender. The trial court enhanced his sentence upon the revocation of his community control. We reverse and remand for resentencing. The trial court erred when it sentenced appellant as a habitual offender upon the revocation of his community control where it had not originally sentenced him as a habitual offender. See Scott v. State, 550 So.2d 111 (Fla. 4th DCA 1989), review dismissed, 560 So.2d 235 (Fla.1990). We certify conflict with Snead v. State, 598 So.2d 316 (Fla. 5th DCA), juris. accepted, 605 So.2d 1266 (Fla.1992).
REVERSED and REMANDED.
POLEN, J., concurs specially with opinion.
I agree with the majority's reversal of appellant's sentence as an habitual violent felony offender, but I would again certify the question we originally certified in Scott v. State, 550 So.2d 111 (Fla. 4th DCA 1989):
MAY THE HABITUAL OFFENDER STATUTE BE APPLIED TO A DEFENDANT WHO WAS ORIGINALLY SUBJECT TO THE STATUTE BUT WAS INSTEAD PLACED ON PROBATION AND WHOSE PROBATION WAS LATER REVOKED?
Review was dismissed in Scott at 560 So.2d 235 (Fla.1990), so the supreme court has not yet addressed the question certified. Since the fifth district has now held otherwise in Snead, as noted by the majority, perhaps the supreme court will revisit (or visit) this issue.
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