Roberts v. State, VV-117

• Decision Date: 04 September 1981
• Docket Number: No. VV-117,VV-117
• Citation: 402 So.2d 1364
• Parties: Cleveland ROBERTS and Ivey Davis, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1364

402 So.2d 1364

Cleveland ROBERTS and Ivey Davis, Appellants, v. STATE of Florida, Appellee.

No. VV-117.

District Court of Appeal of Florida, First District.

Sept. 4, 1981.

Armondo Garcia of Levine & Garcia, Tallahassee, for appellants.

Cleveland Robert, in pro. per.

Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.

PER CURIAM.

Roberts and Davis appeal their convictions for burglary. Roberts, who was sentenced as an habitual felon pursuant to Section 775.084 Florida Statutes (1979), also appeals his sentence. We affirm their convictions but reverse Roberts' sentence and remand for resentencing.

Before the trial court may sentence a party as an habitual felon, the court must find the extended sentence necessary for the protection of the public from further criminal activity. This finding must include "the underlying facts and circumstances which the trial judge relied on in making that finding." Adams v. State, 376 So.2d 47, 58 (Fla. 1st DCA 1979). Neither the trial court's order nor the transcript of the sentencing proceeding specify the facts on which the trial court relied. Accordingly, we reverse the sentence and remand for resentencing in accordance with this opinion.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.

JOANOS, J., concurs in part and dissents in part with opinion.

JOANOS, Judge, concurring in part and dissenting in part.

I concur in the majority's opinion in their affirming the convictions of appellants but dissent in their reversing of Roberts' sentence.

The situation involved in this matter is essentially the same as that involved in McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978). As in this case, the trial judge in McClain made the finding that an enhanced sentence as provided under § 775.084, Florida Statutes, was necessary for the protection of the public but did not articulate the facts supporting that conclusion. In reviewing the enhanced sentence, that Court said:

Turning to the instant case, we note that the judge made conclusionary findings by tracking the statutory language. It would have been helpful if he had outlined specific reasons for concluding that the sentencing of the appellant to an extended term was necessary for the protection of the public. However, the record in this case amply supports the ultimate conclusion, because the evidence concerning appellant's prior criminal record reflects that he has been engaged in a lifetime of crime. Since the...