Opinion
No. 94-1151.
May 16, 1995.
Appeal from the Circuit Court, Duval County, Alban Brooke, J.
Nancy A. Daniels, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.
Robert Lee Allen, Jr. appeals an order of the trial court sentencing him as a habitual violent felony offender on the basis of a single predicate offense. § 775.084, Fla. Stat. (1993). Appellant was on community control for one count of attempted sexual battery where adjudication was withheld when he was charged with armed robbery and uttering a forged instrument. Appellant argues that since he was not on probation, as specified in subsection 775.084(2), the prior offense should not be considered for purposes of habitualization.
Our supreme court has recently held that penal statutes must be strictly construed and that the plain language of subsection 775.084(2) includes only those offenses occurring while on probation. Overstreet v. State, 629 So.2d 125, 126 (Fla. 1993). We follow the lead of the Second District Court of Appeal in holding that under Overstreet the trial court should not have considered appellant's prior conviction since he was on community control and not probation when he committed the present offenses. Smith v. State, 651 So.2d 1218 (Fla. 2d DCA 1995).
Accordingly, we REVERSE the trial court's sentence under section 775.084 and REMAND for resentencing under section 775.082.
ERVIN and BENTON, JJ., concur.
MINER, J., dissents without opinion.