Hardwick v. State

677 So. 2d 958, 1996 WL 426419

Opinion

677 So.2d 958 (1996)

Otis Lee HARDWICK, Appellant,
v.
STATE of Florida, Appellee.

No. 95-01255.

District Court of Appeal of Florida, Second District.

July 31, 1996.

Richard Escobar, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ron Napolitano, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

The appellant, Otis Lee Hardwick, challenges the habitual violent felony offender sentence^[1] imposed following his jury conviction for robbery with a firearm.^[2] We agree with the appellant's argument that at sentencing the state failed to prove that he committed the robbery within five years of his release from prison for the enumerated felony necessary to qualify the appellant as a habitual violent felony offender. See Stephenson v. State, 666 So.2d 573 (Fla. 2d DCA 1996). However, because the appellant never objected to the sufficiency of the state's proof to establish his eligibility to be treated as a habitual violent felony offender, the state shall have the opportunity on remand to supply the requisite proof. See Johnson v. State, 576 So.2d 916 (Fla. 2d DCA 1991).

Reversed and remanded for resentencing.

THREADGILL, C.J., and FRANK and LAZZARA, JJ., concur.

NOTES

[1] See § 775.084(1)(b), Fla. Stat. (1993).

[2] See § 812.13(2)(a), Fla. Stat. (1993).