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Duncan v. State

District Court of Appeal of Florida, First District
May 14, 1991
578 So. 2d 905 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-2023.

May 14, 1991.

An Appeal from the Circuit Court for Okaloosa County; Jere Tolton, Judge.

Nancy A. Daniels, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Virlindia Doss, Asst. Atty. Gen., Tallahassee, for appellee.


Appellant appeals his enhanced sentences as an habitual felony offender, pursuant to section 775.084(1)(a)1, Florida Statutes (Supp. 1988), following his convictions of burglary of a dwelling with assault and attempted sexual battery with the use of great force. The trial judge classified appellant as an habitual offender based on two prior felony convictions which were rendered on the same day in 1986. In light of the decision in Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991), in which this court reaffirmed the long-standing view that habitualization must be supported by sequential convictions and therefore cannot be based upon two convictions that occurred on the same day, classification of appellant as an habitual offender was error. See also Razz v. State, 576 So.2d 901 (Fla. 1st DCA 1991) and Goodman v. State, 578 So.2d 11 (Fla. 1st DCA 1991). As in Barnes, we certify the following question as one of great public importance:

Whether section 775.084(1)(a)1, Florida Statutes (Supp. 1988), which defines habitual felony offenders as those who have "previously been convicted of two or more felonies," requires that each of the felonies be committed after conviction for the immediately previous offense.

REVERSED and REMANDED for resentencing.

ERVIN, J., and WENTWORTH, Senior Judge, concur.


Summaries of

Duncan v. State

District Court of Appeal of Florida, First District
May 14, 1991
578 So. 2d 905 (Fla. Dist. Ct. App. 1991)
Case details for

Duncan v. State

Case Details

Full title:JOE NATHAN DUNCAN, JR., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: May 14, 1991

Citations

578 So. 2d 905 (Fla. Dist. Ct. App. 1991)

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State v. Duncan

OVERTON, Justice. The State of Florida petitions this Court to review Duncan v. State, 578 So.2d 905 (Fla.…