Smith v. State, 5D97-2647.

Decision Date29 September 2000
Docket NumberNo. 5D97-2647.,5D97-2647.
Citation766 So.2d 1257
PartiesLeotis SMITH, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

766 So.2d 1257

Leotis SMITH, Appellant,
v.
STATE of Florida, Appellee.

No. 5D97-2647.

District Court of Appeal of Florida, Fifth District.

September 29, 2000.


James B. Gibson, Public Defender, and Stephanie H. Park, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

COBB, J.

The appellant, Leotis Smith, was erroneously sentenced to life imprisonment as a habitual offender. Smith did not meet the statutory criteria required by section 775.084(1)(a), Florida Statutes (1999). Three felony convictions were relied upon by the sentencing court. Two of those convictions were entered at the same time, and therefore cannot be counted against Smith under the statute. See Prince v. State, 684 So.2d 850 (Fla. 2d DCA 1996); Ford v. State, 652 So.2d 1236 (Fla. 1st DCA 1995); Alfonso v. State, 659 So.2d 478 (Fla. 4th DCA 1995). Moreover, a habitual felony offender sentence cannot be predicated upon an offense or conviction which occurred after the current offense for which the defendant is being sentenced. Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997). The sentence below was "illegal" as that term has now been defined by the Florida Supreme Court. See Maddox v. State, 760 So.2d 89 (Fla.2000).

Accordingly, we reverse the sentences entered below and remand for resentencing.

REVERSED AND REMANDED.

HARRIS and GRIFFIN, JJ., concur.

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5 cases
  • State v. Collins
    • United States
    • Florida Supreme Court
    • June 5, 2008
    ...been ordered after State improperly habitualized defendant for two offenses arising out of the same criminal episode); Smith v. State, 766 So.2d 1257 (Fla. 5th DCA 2000) (resentencing ordered where trial court erred in relying on two convictions that had been entered at the same time; an HF......
  • Jerry v. State
    • United States
    • Florida District Court of Appeals
    • May 7, 2021
    ...relies upon two cases in support of his position, Alfonso v. State, 659 So. 2d 478, 478 (Fla. 4th DCA 1995), and Smith v. State, 766 So. 2d 1257 (Fla. 5th DCA 2000). Alfonso is distinguishable because the lower court imposed an HFO sentence based solely upon two simultaneous convictions. 65......
  • Wilson v. State
    • United States
    • Florida District Court of Appeals
    • August 15, 2001
  • Wilson v. State
    • United States
    • Florida District Court of Appeals
    • June 4, 2003
  • Request a trial to view additional results

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