Westbrook v. State, 92-1004
| Decision Date | 28 April 1993 |
| Docket Number | No. 92-1004,92-1004 |
| Citation | 617 So.2d 782 |
| Parties | 18 Fla. L. Week. D1081 Eric Jerome WESTBROOK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Broward County; Mark A. Speiser, Judge.
Richard L. Jorandby, Public Defender, and Paul D. Caruso, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.
Westbrook appeals his conviction and sentence for robbery. We affirm his conviction, but reverse and remand for resentencing.
The trial court erred in sentencing Westbrook as a habitual felony offender. Section 775.084(1)(a)1, Florida Statutes (1991), requires the trial court to find a defendant has been convicted of two or more felonies in order to be classified as a habitual felony offender. At bar, the state only admitted into evidence one prior felony. On remand, the trial court is instructed to hear additional evidence of prior felonies prior to classifying Westbrook as a habitual felony offender. King v. State, 580 So.2d 169 (Fla. 4th DCA 1991) (en banc).
In addition, the trial court's written sentence failed to conform to the sentence pronounced in open court. Upon remand, the trial court is instructed to impose sentence in accordance with its oral pronouncement. Sirmons v. State, 405 So.2d 310 (Fla. 4th DCA 1981); Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980), rev. denied, 397 So.2d 779 (Fla.1981). Moreover, Westbrook's judgment erroneously lists attempted robbery with a deadly weapon as a first degree felony, when the crime is a second degree felony. Sections 812.13(2)(b) and 777.04(4)(b), Fla.Stat. (1991). Upon remand, the trial court should also correct this error.
REVERSED AND REMANDED WITH INSTRUCTIONS.
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Betty v. State, 4D08-3528.
...781 So.2d 473 (Fla. 3d DCA 2001) (recognizing that attempted robbery with a deadly weapon is a second degree felony); Westbrook v. State, 617 So.2d 782 (Fla. 4th DCA 1993) (directing the trial court to correct the judgment, which erroneously stated that attempted robbery with a deadly weapo......
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Suarez v. State, 96-2011
...Stat. (1995). Accordingly, we remand this cause for the trial court to correct its adjudication on this count. See Westbrook v. State, 617 So.2d 782 (Fla. 4th DCA 1993). Affirmed in part and remanded in part with ...
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