Davis v. State

588 So. 2d 289, 1991 WL 224561

Opinion

588 So.2d 289 (1991)

Ernie Carl DAVIS, Appellant,
v.
STATE of Florida, Appellee.

No. 90-03607.

District Court of Appeal of Florida, Second District.

October 30, 1991.

James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Appellant challenges his sentence imposed pursuant to the habitual violent felony offender statute, sections 775.084(1)(b) and (4)(b), Florida Statutes (1989).

In sentencing appellant as a habitual violent felony offender, the trial court relied upon a burglary conviction, with a two-year sentence, filed March 9, 1981, and a robbery conviction, with a five-year sentence, filed on December 23, 1983. Neither of these convictions occurred within five years prior to the present offense, which was committed on July 13, 1990. There is nothing in the record establishing that appellant was released from prison for the last felony within five years of the present offense. § 775.084(1)(b)2, Fla. Stat. (1989).

Because the proof was insufficient to support that appellant qualified as a habitual violent felony offender, we reverse and remand for resentencing. Because appellant did not object to his prior record at sentencing, on remand the state shall be given the opportunity to establish that appellant qualifies as a habitual violent felony offender. See Johnson v. State, 576 So.2d 916 (Fla. 2d DCA 1991).

FRANK, A.C.J., and HALL and PARKER, JJ., concur.