Foster v. State

624 So. 2d 386, 1993 Fla. App. LEXIS 9498, 1993 WL 372180

Opinion

BLUE, Judge.

Johnny Foster, Jr., appeals the judgments and sentences imposed for the offense of arson and for violation of probation. We affirm the judgments in both cases and the sentence imposed for the violation of probation. We reverse the habitual violent felony offender sentence imposed on the arson case because it falls within the parameters of the holding in State v. Johnson, 616 So.2d 1 (Fla.1993).

In Johnson, the Florida Supreme Court held that the 1989 amendments to section 775.084, Florida Statutes, violate the single subject rule of article III, section 6, of the Florida Constitution. 616 So.2d at 4. However, resentencing is required only for defendants who committed an offense between October 1, 1989, and May 2,1991, and whose sentence was affected by the amendments in chapter 89-280. Among other things, the amendment added aggravated battery to the list of offenses which subject a defendant to treatment as a habitual offender.

Foster’s arson charge occurred on March 6, 1991, placing him within the time frame affected by the 1989 amendments. In sentencing Foster as a habitual violent felony offender, the trial judge relied on a previous conviction for aggravated battery. Foster clearly falls under Johnson and is entitled to a new sentencing hearing.

Accordingly, we reverse Foster’s habitual violent felony offender sentence and remand for resentencing. Upon remand, the state will have the opportunity to prove that Foster otherwise meets the requirements of the statute. See Frazier v. State, 595 So.2d 131 (Fla. 2d DCA1992).

RYDER, A.C.J., and PARKER, J., concur.