CHRISTIAN QUISPE v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: January 18, 2023
• Docket: 21-2150
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 18, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2150 Lower Tribunal No. F12-5553 ________________

Christian Quispe, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.

Before HENDON, GORDO, and BOKOR, JJ.

BOKOR, J. Christian Quispe challenges the sufficiency of the evidence supporting

his violation of probation as well as his sentence as a habitual violent felony

offender (HVFO) and prison releasee reoffender (PRR). The record provides

ample support for a finding of violation of probation as well as sufficient

notice that a violation of probation could result in a sentence of “a maximum

of life in prison.” Accordingly, we affirm without further discussion on those

grounds. But, we vacate the sentence and remand for resentencing because

the trial court failed to make requisite findings of Quispe’s eligibility for PRR

sentencing. See § 775.082(9)(a)3., Fla. Stat. (providing that a defendant

must be sentenced as a PRR “[u]pon proof from the state attorney that

establishes by a preponderance of the evidence that a defendant is a prison

releasee reoffender”); Gray v. State, 910 So. 2d 867, 868 (Fla. 1st DCA

2005) (vacating PRR sentence predicated solely on hearsay evidence of

defendant’s release date); Sinclair v. State, 853 So. 2d 551, 552 (Fla. 1st

DCA 2003) (same); Davenport v. State, 971 So. 2d 293, 295 (Fla. 4th DCA

2008) (“It is permissible for a trial court to take judicial notice of its own files,

but the trial judge has to put such evidence in the record of each case when

sentencing a defendant as an HFO and PRR.”).

Affirmed in part, reversed in part, sentence vacated and remanded for

resentencing.