Shead v. State, s. 77-2443
| Court | Court of Appeal of Florida (US) |
| Citation | 367 So.2d 264 |
| Docket Number | 77-2444,Nos. 77-2443,s. 77-2443 |
| Parties | Vera SHEAD, Appellant, v. The STATE of Florida, Appellee. |
| Decision Date | 13 February 1979 |
Page 264
v.
The STATE of Florida, Appellee.
Pollack, Spain & O'Donnell, John Lipinski, Miami, for appellant.
Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before HUBBART, KEHOE and SCHWARTZ, JJ.
Page 265
HUBBART, Judge.
This is a criminal prosecution in which the defendant was convicted and sentenced on two grand larceny charges in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant appeals attacking solely one of these two sentences.
The central issue presented for review is whether a defendant can be declared a habitual felony offender and be given an enhanced sentence under Section 775.084, Florida Statutes (1975), where (a) he has never previously been convicted of a felony in this state, and (b) he has previously been convicted of two misdemeanors (equivalent in penalty to a first degree misdemeanor in Florida) rendered on the same day in another state. We hold that under these circumstances the defendant cannot be declared a habitual felony offender and be given an enhanced sentence under Section 775.084, Florida Statutes (1975). Accordingly, we reverse the sentence under attack and remand for re-sentencing.
The essential facts pertaining to the above issue are undisputed. The defendant Vera Shead was charged by information with grand larceny allegedly occurring on December 9, 1976. The defendant was tried without a jury and convicted as charged. The trial court pursuant to proper notice thereafter conducted a separate sentencing hearing, at which evidence and testimony was received, to determine whether the defendant should be given an enhanced sentence under the applicable habitual criminal statute (§ 775.084, Fla.Stat. (1975)). The state established at that hearing that on September 11, 1974, the defendant was convicted upon her plea of guilty of two misdemeanors (equivalent in penalty to a first degree misdemeanor in Florida) on a two count indictment in the Court of Common Pleas, Allegheny County, Pennsylvania. Both offenses were committed on the same date against the same victim. The Pennsylvania court imposed a $350 fine for both offenses and the defendant was ordered to leave the county.
Based upon the above evidence, the trial court made the appropriate statutory findings and declared the defendant a habitual felony offender under Section 775.084, Florida Statutes (1975). The court then proceeded to impose an enhanced sentence thereunder which was beyond the ordinary maximum penalty authorized for grand larceny. See § 812.021(2), Fla.Stat. (1975). The defendant was sentenced to a ten year period of probation with a special probationary condition that the defendant serve 91/2 years in prison. The trial court's announced purpose for imposing this probationary condition was to make certain that the defendant would never be paroled from prison. The defendant was also fined $5,000. The defendant appeals attacking solely the legality of this sentence.
The defendant was also charged, tried without a jury and convicted on another unrelated grand larceny charge. The trial court sentenced the defendant to five years in the state penitentiary, the sentence to run consecutively with the probationary sentence imposed on the first grand larceny case. A $5,000 fine was also imposed unless appropriate restitution to the victim was made as of a certain date. The defendant appeals this conviction and sentence, but has conceded before this court that no error was committed in this case.
Section 775.084, Florida Statutes (1975), is the controlling statutory authority on the issue before the court. The defendant was sentenced thereunder as a habitual criminal offender on the first grand larceny conviction. The applicable provisions of that statute read as follows:
"(1) As used in this act:
(a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has:
a. Previously been convicted of a felony (in this state);
Page 266
b. Twice previously been convicted of a misdemeanor of the first degree in this state or (of) another qualified offense (for) which the defendant was convicted after the defendant's 18th birthday;
2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years...
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