Opinion
No. 80-887.
May 6, 1981.
Appeal from the Circuit Court, Sumter County, John W. Booth, J.
James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Thomas R. Mott, Certified Legal Intern, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant challenges an enhanced penalty which was imposed after his conviction for assault on a law enforcement officer. The trial court found appellant to be an "habitual misdemeanant" based upon prior convictions for robbery and manslaughter.
Section 775.084(1)(b) permits an enhanced penalty only when the defendant has been convicted twice previously of the same crime. Hysmith v. State, 374 So.2d 1103 (Fla. 1st DCA 1979). Neither of the previous convictions were for the same crime.
Section 775.084(1)(b) provides in part:
`Habitual misdemeanant' means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has at least twice previously been convicted of the same crime committed at different times after the defendant's 18th birthday;
Defendant's sentence is vacated and this cause is remanded for resentencing.
DAUKSCH, C.J., and ORFINGER, J., concur.