From Casetext: Smarter Legal Research

Valentine v. State

District Court of Appeal of Florida, Fifth District
Apr 11, 1991
577 So. 2d 714 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-741.

April 11, 1991.

Appeal from the Circuit Court, Volusia County, Robert P. Miller, J.

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.


This is an appeal from convictions and sentences. We affirm the convictions and vacate the sentences.

Appellant was convicted of attempted murder 2, possession of a firearm by convicted felon and use of a firearm in commission of a felony. The sentencing judge erred in imposing the mandatory minimum three year sentence for the attempted murder charge because there was no finding by the jury that a firearm was used in the commission of that crime. State v. Overfelt, 457 So.2d 1385 (Fla. 1984). The sentence as an habitual offender was also error because appellant was not previously convicted of two or more felonies, as that phrase is defined under Taylor v. State, 558 So.2d 1092 (Fla. 5th DCA 1990). In order to qualify as two or more felonies, the prior convictions must arise from separate convictions. Here, appellant's prior convictions were all at the same time and can be considered for habitual offender purposes as only one prior conviction. Taylor. Although the habitual offender statute was amended on October 1, 1989, Taylor is controlling because the present crimes were committed on June 20, 1989, which is before the date of the amendment.

CONVICTIONS AFFIRMED, SENTENCES VACATED; REMANDED for RESENTENCING.

COBB and W. SHARP, JJ., concur.


Summaries of

Valentine v. State

District Court of Appeal of Florida, Fifth District
Apr 11, 1991
577 So. 2d 714 (Fla. Dist. Ct. App. 1991)
Case details for

Valentine v. State

Case Details

Full title:CHARLES VALENTINE, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Apr 11, 1991

Citations

577 So. 2d 714 (Fla. Dist. Ct. App. 1991)

Citing Cases

Harrison v. State

Both sides to this appeal agree that, under the 1988 version of the Habitual Offender Act, the state must…