Opinion
No. 4D02-3091.
February 16, 2005.
Appeal from the Seventeenth Judicial Circuit Court, Broward County, Joel T. Lazarus, J.
Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Julius Underhill, appeals his conviction and sentence. We affirm his conviction but find appellant's argument that the trial court erred in sentencing him as a habitual felony offender has merit.
Appellant was placed on probation in case number 93-4847CF. That probation was revoked on November 13, 1998, and he was sentenced to twenty-one months in prison. On the same date, he was sentenced to twenty-one months in prison in case number 93-14509CF. These were the cases relied upon to establish that appellant was a habitual felony offender.
In Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2004), this court ruled that the sequential conviction requirement in section 775.084(1)(a) (5), Florida Statutes (1999), was not met when a defendant is placed on probation for one charge and then, at the time of sentencing on a second charge, he is found to have violated probation and sentenced on the first charge. See also Petruny v. State, 884 So.2d 312 (Fla. 4th DCA 2004); Puskac v. State, 872 So.2d 1008 (Fla. 4th DCA 2004). This court has certified conflict with the second district's decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003).
We remand this case for resentencing to permit the state to introduce evidence, if it exists, of other qualifying convictions which would allow for a habitual offender sentence.
REVERSED and REMANDED for resentencing.
WARNER, POLEN and HAZOURI, JJ., concur.