Opinion
No. 1D22-765
11-23-2022
Joseph SPURLING, Appellant, v. STATE of Florida, Appellee.
Joseph Spurling, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Joseph Spurling, pro se, Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
Per Curiam.
Appellant appeals the trial court's order denying a rule 3.800(a) motion to correct illegal sentence. He alleges that his sentence in 2015-CF-4028 was illegal because he did not qualify as a habitual felony offender (HFO). We affirm.
In 2005-CF-12482, Appellant pleaded nolo contendere to obtaining unemployment compensation by fraud, a third-degree felony. On April 20, 2006, the circuit court placed Appellant on probation, with adjudication withheld.
In 2015-CF-1262, Appellant pleaded guilty to neglect of an elderly or disabled person, and in March 2015, the circuit court placed him on probation. However, on January 25, 2016—after he committed a new law violation—the circuit court revoked his probation and sentenced him to 31.425 months in prison.
In 2015-CF-4028, Appellant pleaded guilty to threatening to throw, project, place, or discharge a destructive device and to giving false information to law enforcement. On January 25, 2016, the circuit court sentenced him to thirty years in prison as an HFO for the destructive device charge and time served for giving false information to law enforcement, with his sentence to run concurrently with 2015-CF-1262. On appeal, this Court per curiam affirmed his judgment and sentence. See Spurling v. State, 199 So. 3d 265 (Fla. 1st DCA 2016).
Appellant now argues that he did not meet the prior-conviction requirements to be sentenced as an HFO because the circuit court sentenced him to one of the predicate offenses at the same time as the HFO sentence—January 25, 2016. This claim is meritless. The HFO statute, section 775.084(1), Florida Statutes (2015) requires the State to prove that a defendant has been previously convicted of two or more felonies. At the time of Appellant's sentencing, the statute provided: "In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony." § 775.084 (5), Fla. Stat.
The State is also required to prove that the current felony was committed "[w]ithin 5 years of the date of the conviction of the defendant's last prior felony ... or within 5 years of the defendant's release from a prison sentence ... imposed as a result of a prior conviction for a felony or other qualified offense." § 775.084 (1)(a) 2.b. The State must also show that a defendant has not received a pardon for any of the predicate convictions or had a predicate conviction set aside in a postconviction proceeding. §§ 775.084 (1)(a) 4, 5. If the State meets these requirements, then the trial court must impose a habitual offender sentence unless it makes a written finding that the sentence is not necessary for the protection of the public. See §§ 775.084(1)(a), (3)(a) 6.
The Florida Supreme Court has held that a sentence of probation or community control can serve as a predicate conviction for purposes of habitualization. State v. Richardson , 915 So. 2d 86, 89 (Fla. 2005). This is true even when the HFO sentence is imposed at the same time as the violation of probation sentence. Id. at 87–88. The supreme court stated that the reasoning behind the sequential conviction requirement for enhanced sentencing is "based on the philosophy that an individual who has been convicted of one offense and who, with knowledge of that conviction, subsequently commits another offense, has rejected his ... opportunity to reform and should be sentenced as a habitual offender." Id. at 88 (quoting State v. Barnes , 595 So. 2d 22, 24 (Fla. 1992) ).
Here, the trial court convicted Appellant of two underlying felonies prior to his conviction in 2015-CF-4028. In 2005-CF-12482, Appellant was sentenced to probation for obtaining unemployment compensation by fraud, a third-degree felony. In 2015-CF-1262, he was convicted of neglect of an elderly or disabled adult (a third-degree felony), and on March 17, 2015, the trial court sentenced him to probation. Contrary to Appellant's argument, March 17, 2015, not January 25, 2016, is the original date of that conviction, even though the court sentenced him only to probation. See Richardson, supra. That the trial court later revoked that probation and sentenced him to prison on the same day it sentenced him for his new law violations in 2015-CF-4028 is irrelevant. Thus, the record shows that Appellant committed two prior felonies, and the trial court convicted him of one of them within five years of his offense in 2015-CF-4028. And so, Appellant met the qualifications to be sentenced as a habitual felony offender, his sentence was not illegal, and the postconviction court did not err in denying relief under rule 3.800(a).
Rowe, C.J., and B.L. Thomas and Long, JJ., concur.