Summary
holding that an HFO enhancement was illegal if one of the two predicate offenses was actually a misdemeanor
Summary of this case from McGlaun v. DixonOpinion
No. 1D15–3786.
01-08-2016
David Lance BYRD, Appellant, v. STATE of Florida, Appellee.
David Lance Byrd, pro se, Appellant. Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
David Lance Byrd, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
Opinion
PER CURIAM.
Appellant filed a rule 3.800(a) motion asserting that his sentence has been improperly enhanced by the habitual felony offender statute (HFO), because one of the two predicate offenses was actually a misdemeanor, not a felony. He has attached a copy of the sentencing hearing transcript in the underlying case, which indicates the trial court convicted him of misdemeanor petit theft, but not robbery. The oral pronouncement prevails over the written judgment. State v. Williams, 870 So.2d 207 (Fla. 1st DCA 2004). The state concedes that the postconviction court has not conclusively refuted this claim.
We therefore reverse and remand for the lower court to either attach the portion of the record that conclusively refutes the claim, or to resentence appellant. If resentenced, if appellant did not object during sentencing on the basis that the applicable prior convictions did not qualify him for HFO enhancement, the state may choose to present other prior convictions that satisfy the qualifying conviction requirement. McNair v. State, 920 So.2d 111, 112 (Fla. 1st DCA 2006).
REVERSED AND REMANDED.
LEWIS, WETHERELL, and BILBREY, JJ., concur.