Valentine v. State, 90-741

• Decision Date: 11 April 1991
• Docket Number: No. 90-741,90-741
• Citation: 16 Fla. L. Weekly 975,577 So.2d 714
• Parties: 16 Fla. L. Weekly 975 Charles VALENTINE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 714

577 So.2d 714

16 Fla. L. Weekly 975

Charles VALENTINE, Appellant, v. STATE of Florida, Appellee.

No. 90-741.

District Court of Appeal of Florida,

Fifth District.

April 11, 1991.

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from convictions and sentences. We affirm the convictions and vacate the sentences.

Appellant was convicted of attempted murder 2, possession of a firearm by convicted felon and use of a firearm in commission of a felony. The sentencing judge erred in imposing the mandatory minimum three year sentence for the attempted murder charge because there was no finding by the jury that a firearm was used in the commission of that crime. State v. Overfelt, 457 So.2d 1385 (Fla.1984). The sentence as an habitual offender was also error because appellant was not previously convicted of two or more felonies, as that phrase is defined under Taylor v. State, 558 So.2d 1092 (Fla. 5th DCA 1990). In order to qualify as two or more felonies, the prior convictions must arise from separate convictions. Here, appellant's prior convictions were all at the same time and can be considered for habitual offender purposes as only one prior conviction. Taylor. Although the habitual offender statute was amended on October 1, 1989, Taylor is controlling because the present crimes were committed on June 20, 1989, which is before the date of the amendment.

CONVICTIONS AFFIRMED, SENTENCES VACATED; REMANDED for RESENTENCING.

COBB and W. SHARP, JJ., concur.