LANORA MALONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lanora Malone appealed her sentence as a habitual felony offender, arguing the trial court erroneously used predicate offenses that were committed after her current offense. Although the appellate court agreed the habitualization was improper, it affirmed the sentence because Malone's appellate brief was filed outside the statutory window period for correcting such unpreserved sentencing errors.
Although the trial court erroneously sentenced Malone as a habitual felony offender, the appellate court will not reverse the sentence because Malone's appellate brief was filed outside the statutory window period established by the Criminal Appeal Reform Act of 1996 and Amendments II for correcting unpreserved habitualization errors. Malone must pursue post-conviction remedies in the trial court.
[1] A defendant may be sentenced as a habitual felony offender if the current felony was committed within five years of the conviction or release date of a prior felony offen…
[2] For an offense to qualify as a predicate offense for habitual offender sentencing, both the commission and sentencing for that offense must have occurred prior to the com…
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Join FLexlaw to unlock all legal intelligence“In order to qualify as a predicate offense, both the commission and sentencing for the offense must have occurred prior to the commission of the offense for which the defendant is currently being sentenced.”
Establishes the legal requirement for valid predicate offenses in habitual felony offender sentencing
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Join FLexlaw to unlock all legal intelligenceMalone was convicted and sentenced as a habitual felony offender to thirty years for burglary and ten years for grand theft. The trial court used thre…
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SAWAYA, J.
The appellant, Lanora Malone, appeals her judgment and sentence imposed after a jury trial alleging that she received an illegal sentence when the trial court sentenced her as a habitual felony offender to thirty years for burglary and ten years for grand theft. She raises other issues in these proceedings, but we find they are without merit and do not warrant discussion.
A trial court may sentence a defendant as a habitual felony offender if it finds, based on record evidence, that the defendant has been previously convicted of any combination of two or more felonies and the felony for which the defendant is currently being sentenced occurred either (a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a prior felony conviction or (b) within five years from the date of conviction for the defendant’s last prior felony or within five years from the date of the defendant’s release from prison or supervision for a prior felony offense, whichever is later. See § 775.084(l)(a), Fla.Stat. (1997); see also Smith v. State, 742 So. 2d 352 (Fla. 5th DCA 1999). In order to qualify as a predicate offense, both the commission and sentencing for the offense must have occurred prior to the commission of the offense for which the defendant is currently being sentenced. See § 775.084(5), Fla. Stat. (1997); Smith.
In the instant case, although two of the three predicate convictions used to habitualize Malone preceded the conviction date of Malone’s current offense, the commission of these two predicate offenses occurred after the commission date of the instant offense. Malone, however, did not object to this error at the time of sentencing. Therefore, although we agree that the trial court erroneously sentenced Malone as a habitual felony offender, we will not reverse the sentence in these proceedings based on the holding in Maddox v. State, 760 So. 2d 89 (Fla.2000).
In Maddox, the court held that appellate courts may correct “certain categories of sentencing errors for criminal defendants whose appellate briefs were filed during the window period after the enactment of the Act but before the adoption of our recent procedural changes in Amendments II.” Maddox, 760 So. 2d at 99. The court held that “improper habitualization” is an unpreserved sentencing error that should be corrected on appeal during this window period. See Maddox, 760 So. 2d at 101-03. The effective date of the Criminal Appeal Reform Act of 1996 was July 1, 1996. See Ch. 96-248, § 9, at 957, Laws of Fla. The date that the opinion in Amendments II was issued on rehearing is January 13, 2000. See Amendments to Florida Rules of Criminal Procedure S.111(e) & 3.800 .& Florida Rules of Appellate Procedure 9.020(h), 9.U0, & 9.600, 761 So. 2d 1015 (Fla.2000) (Amendments II). Although Malone’s notice of appeal, filed December 10, 1999, was within the window period, her initial appellate brief was filed on March 28, 2000, which is outside the window period. Thus Malone will have to pursue post conviction remedies and request relief from the trial court.
AFFIRMED.
SHARP, W., J., concurs.
GRIFFIN, J., concurs specially, with opinion.
GRIFFIN, J.,
concurring specially.
Based on the supreme court’s subsequent descriptions of the holding in Maddox, I concur. Edwards v. State, 771 So. 2d 1136 (Fla.2000); Collins v. State, 766 So. 2d 1009, n. 1 (Fla.2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002)…date of the amendments to rule 3.800(b), consequently her claim of sentencing error, even if fundamental, is not preserved for appellate review and Lewis is precluded from raising this issue for the first time on appeal. See Maddox; Malone v. State, 777 So. 2d 449 (Fla. 5th DCA 2001); see also Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001). Accordingly, we affirm Lewis’s sentence without prejudice to her right to seek appropriate post-conviction relief. Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA…
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Alfie Stinson v. State, 785 So. 2d 759 (Fla. 1st DCA 2001)…luded from raising this issue for the first time on appeal. See Maddox v. State, 760 So. 2d 89 (Fla.2000); Harvey v. State, 786 So. 2d 595 (Fla. 1st DCA 2001), reh’g denied and questions certified, 786 So. 2d 28 (Fla. 1st DCA 2001); Malone v. State, 777 So. 2d 449 (Fla. 5th DCA 2001). Accordingly, we affirm the appellant’s conviction and sentence without prejudice to the appellant’s right to seek appropriate post-conviction relief. BOOTH, KAHN, and VAN NORTWICK, JJ., CONCUR.…
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Smith v. State, 785 So. 2d 623 (Fla. 5th DCA 2001)…state points out that Smith’s failure to object below and failure to raise his sentencing complaint with a Florida Rule of Criminal Procedure 3.800(b) motion waived this point for purposes of direct appeal. The state is correct. See Malone v. State, 777 So. 2d 449 (Fla. 5th DCA 2001); see also Fla. R.App. P. 9.140(d) (“[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Amendments TO Fla. Rules OF Crim. Procedure 3.111(e) & 3.800 & Fla. Rules OF App. Procedure 9.020(h), 791 So. 2d 525 (Fla. 2001)
- Collins v. State, 766 So. 2d 1009 (Fla. 2000)
- Donnie Smith v. State, 742 So. 2d 352 (Fla. 5th DCA 1999)
- Edmondson v. State, 771 So. 2d 1136 (Fla. 2000)
- Edwards v. State, 771 So. 2d 1136 (Fla. 2000)