Opinion
No. 91-01453.
June 5, 1992.
Appeal from the Circuit Court, Hillsborough County, Barbara Fleischer, J.
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellee.
Appellant raises two points in this appeal from judgments and sentences for various drug offenses. As to the first point, we find the evidence sufficient to support the convictions.
Appellant's second point is that the trial court sentenced him as a habitual offender without making the necessary findings. We note that, at the sentencing hearing, the trial judge had appellant's PSI before him and recited more than sufficient prior felony convictions, one of which was specifically noted by the assistant state attorney to be within five years of the instant conviction. When the trial judge asked if anybody had "any quarrel" with the PSI, defense counsel responded that he did not.
It is true that there was no evidence presented, and no findings, as to whether appellant had been pardoned for any of the prior felonies or whether any of the prior felony convictions had been set aside in post-conviction proceedings. See section 775.084(1)(a)3-4, Fla. Stat. (1991). However, those two matters are affirmative defenses which must be raised by appellant at the trial court level. See Baxter v. State, 599 So.2d 721 (Fla. 2d DCA 1992).
Affirmed.
SCHOONOVER, C.J., and LEHAN and FRANK, JJ., concur.