DEOIN WESTBERRY A/K/A DEION WESTBERRY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's habitual offender sentence was legal because the state relied on a prior withhold of adjudication, which counts as a prior conviction, and at least one other valid prior conviction.
The defendant was sentenced as an habitual offender and sought post-conviction relief, arguing his prior convictions did not meet the sequential sente…
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FLETCHER, Judge.
Deoin Westberry a/k/a Deion Westber-ry, sentenced as an habitual offender, appeals from the trial court’s denial of post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800. We affirm.
Westberry asserts in part that he did not qualify for habitual offender sentencing because his prior convictions did not satisfy the sequential sentencing requirement of section 775.084(5), Florida Statutes (2004). See Bover v. State, 797 So. 2d 1246, 1250. (Fla.2001)(although sentencing for separate convictions arising from unrelated crimes can take place on same day, sentences cannot be part of same sentencing proceeding; those separate convictions in same proceeding cannot be considered “sequential” for purposes of habitualization). Westberry also argues that the state incorrectly relied upon an offense for which he received a withhold of adjudication and probation.
If Westberry’s probation sentences in case numbers 02-366 and 01-33456 were the sole prior convictions upon which the state relied for habitualization, Westberry would be correct, as the record reflects that those sentences were imposed on the same day (May 29, 2002). However, the state also relied upon the defendant’s prior withhold of adjudication in case number 97-14598. Section 775.084(2), ' Florida Statutes (2002) provides that “the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.” [e.s.] Thus, the prior withhold in case number 97-14598, and either of the two convictions sentenced on the same day in May 2002 (02-366, or 01-33456) were appropriately relied upon for imposition of habitual offender sentencing in the current case number 02-24481. Westberry’s habitual offender sentence is legal, and we therefore affirm the trial court’s order denying post-conviction relief.
Affirmed.
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Jerry v. State, 293 So. 3d 1044 (Fla. 5th DCA 2021)…ld serve as a predicate. In our independent review, we have found no case that supports such an assertion; to the contrary, other courts have found that simultaneous convictions may serve as a single predicate offense. See, e.g., Westberry v. State, 906 So. 2d 1141, 1142 (Fla. 3d DCA 2005); Johnson v. State, 790 So. 2d 1163 (Fla. 2d DCA 2001). Due to Jerry’s repeated appeals to this Court, we caution him that further filings in this case may result in sanctions. See Cokley v. State, 981 So. 2d 582, 582 (Fla.…
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Washington v. State, 988 So. 2d 724 (Fla. 4th DCA 2008)…ty but a formal adjudication is withheld. See, e.g., Montgomery v. State, 897 So. 2d 1282 (Fla.2005) (recognizing that § 921.0021(2) (2002) defines conviction to include withhold adjudication and probation under no contest plea); Westberry v. State, 906 So. 2d 1141 (Fla. 3d DCA 2005) (recognizing that probation or community control without adjudication of guilt constitutes conviction under § 775.084(2), Fla. Stat. (2002)). The JRA statute, however, fails to include that express provision. The obvious meaning i…
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Stephens v. State, 69 So. 3d 1084 (Fla. 2d DCA 2011)…). The convictions were entered on the same day, in the same proceedings, and do not meet the sequential conviction requirements of section 775.084(5). See id.; see also Johnson v. State, 790 So. 2d 1163, 1163 (Fla. 2d DCA 2001); Westberry v. State, 906 So. 2d 1141, 1142 (Fla. 3d DCA 2005). Because the convictions only count as one prior felony, alone, they are insufficient to qualify Stephens for habitual felony offender sentencing. Additionally, the attached Virginia convictions are not prior convictions an…
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- Bover v. State, 797 So. 2d 1246 (Fla. 2001)