Demons v. State

District Court of Appeal of Florida

Demons v. State

614 So. 2d 47, 1993 Fla. App. LEXIS 2443, 1993 WL 64807

CourtDistrict Court of Appeal of Florida

DecidedMarch 10, 1993

DocketNo. 91-1858

StatusPublished

This text of 614 So. 2d 47 (Demons v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Demons v. State, 614 So. 2d 47, 1993 Fla. App. LEXIS 2443, 1993 WL 64807 (Fla. Ct. App. 1993).

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Opinion

HERSEY, Judge.

Once again we reverse and remand this case for resentencing. See Demons v. State, 577 So.2d 702 (Fla. 4th DCA 1991). When a defendant is to be sentenced as an habitual felony offender pursuant to section 775.084(l)(a), Florida Statutes (1989), the trial court is required to make findings, either in its written order or at the sentencing hearing, which include that the last of the two or more prior felony or other qualified offense convictions was committed within five years of the date of the instant offense, and that the qualifying convictions had not been pardoned or set aside in a post-conviction proceeding. § 775.084(3), Fla.Stat. (1989). Although the trial judge found on remand that appellant was previously convicted of two felonies, the record contains no evidence as to the conviction dates for those felonies. Therefore, the trial court’s failure to make the finding required by section 775.084(l)(a)2., Florida Statutes (1989), cannot be considered harmless error. See State v. Rucker, 613 So.2d 460 (Fla. Feb. 4, 1993).

REVERSED AND REMANDED.

DELL, J., and DOWNEY, JAMES C., Senior Judge, concur.

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HERSEY, Judge.

Once again we reverse and remand this case for resentencing. See Demons v. State, 577 So.2d 702 (Fla. 4th DCA 1991). When a defendant is to be sentenced as an habitual felony offender pursuant to section 775.084(l)(a), Florida Statutes (1989), the trial court is required to make findings, either in its written order or at the sentencing hearing, which include that the last of the two or more prior felony or other qualified offense convictions was committed within five years of the date of the instant offense, and that the qualifying convictions had not been pardoned or set aside in a post-conviction proceeding. § 775.084(3), Fla.Stat. (1989). Although the trial judge found on remand that appellant was previously convicted of two felonies, the record contains no evidence as to the conviction dates for those felonies. Therefore, the trial court’s failure to make the finding required by section 775.084(l)(a)2., Florida Statutes (1989), cannot be considered harmless error. See State v. Rucker, 613 So.2d 460 (Fla. Feb. 4, 1993).

REVERSED AND REMANDED.

DELL, J., and DOWNEY, JAMES C., Senior Judge, concur.

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614 So. 2d 47, 1993 Fla. App. LEXIS 2443, 1993 WL 64807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demons-v-state-fladistctapp-1993.

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