Opinion
No. 4D98-3950.
Opinion filed April 25, 2001.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 97-11125 CF.
Marcia J. Silvers of Dunlap Silvers, P.A., Miami, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Thomas C. Mielke, Assistant Attorney General, Fort Lauderdale, for appellee.
We affirm appellant's appeal of his habitual felony offender sentence. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) does not require findings beyond a reasonable doubt of the fact of a prior conviction. 120 S.Ct. at 2362-63; Jones v. State, 26 Fla. L. Weekly D563 (Fla. 2d DCA Feb. 21, 2001). Appellant argues that Apprendi applies to finding necessity for habitualization under section 775.084, Florida Statutes. The statute, however, does not require such a finding. It only requires a finding if the court concludes that habitualization is unnecessary where the other requirements of the statute are met. § 775.084(3)(a)6. That finding was not made here, and in any event would not be a fact which must be proved beyond a reasonable doubt. Apprendi, 120 S.Ct. at 2362-63 (distinguishing between facts in aggravation of punishment and facts in mitigation of punishment). Affirmed.
DELL, STONE and KLEIN, JJ., Concur.