Power v. State, No. 89-1548

CourtCourt of Appeal of Florida (US)
Writing for the CourtGOSHORN
Citation568 So.2d 511
Parties15 Fla. L. Weekly D2606 Robert Beeler POWER, Jr., Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 89-1548
Decision Date18 October 1990

Page 511

568 So.2d 511
15 Fla. L. Weekly D2606
Robert Beeler POWER, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 89-1548.
District Court of Appeal of Florida,
Fifth District.
Oct. 18, 1990.

James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR CLARIFICATION

GOSHORN, Judge.

Appellee's Motion for Clarification is granted. The opinion issued July 19, 1990 is withdrawn and the following opinion is substituted in lieu thereof.

Robert Power, Jr. appeals the judgment and sentence imposed after a jury returned a verdict finding him guilty of six life felonies, two first degree felonies punishable by life and one second degree felony. 1 The scoresheet total was almost twice that needed to place the recommended sentence at life imprisonment. The trial court departed 2 and sentenced Power to eight consecutive life sentences for all but the second degree felony count, for which Power was given a 30 year sentence consecutive to the life sentences. The trial court provided clear and convincing reasons for the departure sentences. These are not challenged. Power does, however, take issue with the 30 year sentence for the second degree felony, imposed by the trial court after its determination that Power is an habitual offender. Because the trial court failed to make the factual findings required by section 775.084, Florida Statutes, we must vacate the habitual offender sentence. Moreno v. State, 550 So.2d 1172 (Fla. 3d DCA 1989). Although the 1989 version of the habitual offender statute no longer requires that the trial court find that a defendant poses a threat to public safety, the other findings necessary to an habitual offender determination survived the 1988 amendment. 3 Johnson v. State, 564 So.2d 1174 (Fla. 4th DCA 1990); Taylor v. State, 559 So.2d 385 (Fla. 3d DCA 1990). These findings need

Page 512

not be reduced to writing as long as they are made in a reported judicial proceeding. Parker v. State, 546 So.2d 727 (Fla.1989). Upon remand, the trial court may reconsider application of the habitual offender statute when resentencing Power. Moreno; Pugh v. State, 547 So.2d 289 (Fla. 1st DCA 1989).

Additionally, when imposing sentences for each of the felonies punishable by life, the "habitual offender" boxes were checked on the judgment and sentence form....

To continue reading

Request your trial
21 practice notes
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...court noted in dictum that statute was not expressly applicable to life felonies). The Fifth District Court of Appeal in Power v. State, 568 So.2d 511 (Fla.App. 5th DCA 1990), and the Second District Court of Appeal in McKinney v. State, 585 So.2d 318 (Fla. 2d DCA 1991) have similarly state......
  • Pearson v. State, No. 90-2148
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 1992
    ...Walker v. State, 580 So.2d 281 (Fla. 4th DCA 1991), rev. dismissed, 593 So.2d 1049 (Fla.1992); FIFTH DISTRICT: Power v. State, 568 So.2d 511 (Fla. 5th DCA...
  • Newton v. State, No. 90-3182
    • United States
    • Court of Appeal of Florida (US)
    • July 15, 1992
    ...(Fla.1992) (habitual offender statute does not apply to life felony of attempted murder of law enforcement officer); and Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990). Although the trial court erred when it sentenced appellant as a habitual offender for his three convictions of attempte......
  • Sessions v. State, No. 90-2186
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...Newton v. State, 581 So.2d 212 (Fla. 4th DCA), juris. accepted, 589 So.2d 291, 292 (Fla.1991); Fifth District: Power v. State, 568 So.2d 511 (Fla. 5th DCA...
  • Request a trial to view additional results
21 cases
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...court noted in dictum that statute was not expressly applicable to life felonies). The Fifth District Court of Appeal in Power v. State, 568 So.2d 511 (Fla.App. 5th DCA 1990), and the Second District Court of Appeal in McKinney v. State, 585 So.2d 318 (Fla. 2d DCA 1991) have similarly state......
  • Pearson v. State, No. 90-2148
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 1992
    ...Walker v. State, 580 So.2d 281 (Fla. 4th DCA 1991), rev. dismissed, 593 So.2d 1049 (Fla.1992); FIFTH DISTRICT: Power v. State, 568 So.2d 511 (Fla. 5th DCA...
  • Newton v. State, No. 90-3182
    • United States
    • Court of Appeal of Florida (US)
    • July 15, 1992
    ...(Fla.1992) (habitual offender statute does not apply to life felony of attempted murder of law enforcement officer); and Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990). Although the trial court erred when it sentenced appellant as a habitual offender for his three convictions of attempte......
  • Sessions v. State, No. 90-2186
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...Newton v. State, 581 So.2d 212 (Fla. 4th DCA), juris. accepted, 589 So.2d 291, 292 (Fla.1991); Fifth District: Power v. State, 568 So.2d 511 (Fla. 5th DCA...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT