CAREY BARNES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carey Barnes appeals his convictions for battery on a law enforcement officer and his habitual offender sentence. The court affirms the convictions and sentence but remands to correct the judgment to reflect a third-degree felony battery rather than a first-degree felony aggravated battery in Count II.
The court affirmed Barnes' habitual offender sentence. A defendant may be habitualized when the instant offense was committed within five years of prior convictions, even if the defendant had not been released from prison. The statute's "whichever is later" language applies only when both circumstance alternatives exist.
[1] A judgment must be corrected to accurately reflect the conviction for battery on a law enforcement officer, a third-degree felony, rather than aggravated battery on a law…
[2] A defendant may be sentenced as a habitual offender if the instant offense was committed within five years of prior convictions, even if the defendant had not been releas…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In contrast, Barnes' case fits within the first alternative: he committed the instant offense within fívé years of his convictions for the prior offenses. The alternative circumstance, that he commit the instant offense within five years of release from prison, does not apply when there has been no release from prison.”
Establishes that the habitual offender statute's first alternative applies when the instant offense is committed within five years of prior convictions, regardless of whether the defendant was still incarcerated.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCarey Barnes was convicted of battery on a law enforcement officer. He had two prior felony convictions and committed the instant offense within five …
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ERVIN, Judge.
We affirm the convictions of appellant, Carey Barnes, but remand for correction of the judgment to reflect that he was convicted in Count II of battery on a law enforcement officer, a third-degree felony, rather than aggravated battery on a law enforcement officer, a first-degree felony.
We also affirm Barnes’ sentence as a habitual offender under section 775.084(l)(a)(2), Florida Statutes (1989).1 Although it is undisputed that Barnes committed the instant offense within five years of two previous offenses, Barnes claims the statute precludes his habitualization, because he had not been released from prison when he committed the instant battery, and the statute requires the court to apply whichever circumstance is later when calculating the five-year period. He contends that in Jeffries v. State, 610 So. 2d 440 (Fla.1992), the supreme court held that Jeffries could not be habitualized because he had been in prison more than five years and had never been released. We disagree.
Jeffries had been convicted in 1980 of burglary and was still in prison serving his sentence when he attempted to escape in 1989. He thus could not be habitualized, because, under the terms of the statute, he had not either committed the later offense within five years of his 1980 conviction or been released from prison for the prior offense.
In contrast, Barnes’ case fits within the first alternative: he committed the instant offense within fívé years of his convictions for the prior offenses. The alternative circumstance, that he commit the instant offense within five years of release from prison, does not apply when there has been no release from prison. The language, “whichever is later,” would apply only if both circumstances existed, whereupon the court would be required to use the date of the more recent circumstance.
REMANDED FOR CORRECTION OF JUDGMENT.
MICKLE and DAVIS, JJ., concur. . That subsection requires a showing that the felony for which the defendant is being sentenced was committed
within 5 years of the date of the conviction of the last prior felony or other qualified offense of which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later[.]
(Emphasis added.)
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Wright v. State, 834 So. 2d 879 (Fla. 3d DCA 2002)…ications occurred on October 17, 1988. Since the new crimes were committed within five years of the adjudication of the predicate offenses, it follows that the defendant qualifies as an HVO. See § 775.084(l)(b)2., Fla. Stat. (1991); Barnes v. State, 634 So. 2d 230 (Fla. 1st DCA 1994). In Jeffries, by contrast, the defendant committed his new crime in prison, more than five years after the adjudication of the predicate offense. 610 So. 2d at 440. There was likewise a gap of more than five years in the Johnson…
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Echols v. State, 253 So. 3d 564 (Fla. 2d DCA 2018)…3d DCA 2006); Johnson v. State, 917 So. 2d 1011 (Fla. 4th DCA 2006); Wright v. State, 834 So. 2d 879 (Fla. 3d DCA 2002); Sampson v. State, 832 So. 2d 251 (Fla. 5th DCA 2002); Middleton v. State, 721 So. 2d 792 (Fla. 3d DCA 1998); Barnes v. State, 634 So. 2d 230 (Fla. 1st DCA 1994). CRENSHAW, MORRIS, and SLEET, JJ., Concur.…
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Gadsden v. State, 261 So. 3d 518 (Fla. 2d DCA 2018)
Authorities Cited
- Jeffries v. State, 610 So. 2d 440 (Fla. 1992)