James M. Clark v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: September 5, 2016
• Docket: 15-2622
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JAMES M. CLARK, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D15-2622

STATE OF FLORIDA,

Appellee.

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Opinion filed September 6, 2016.

An appeal from the Circuit Court for Calhoun County. Allen L. Register, Judge.

Terry P. Roberts, Law Office of Terry P. Roberts, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant raises two issues related to his conviction and one issue regarding

his sentencing. We find only the claim related to appellant’s sentencing has merit.

The State concedes the trial court improperly designated appellant as an habitual

felony offender, ignoring the jury’s express finding that the State had failed to prove appellant’s prior convictions.* See Borrell v. State 478 So. 2d 1185 (Fla. 4th

DCA 1985).

Based upon the State’s concession, we strike the habitual felony offender

designation and remand for appellant to be resentenced.

WOLF, B.L. THOMAS, and OSTERHAUS, JJ., CONCUR.

* This finding was expressed in a special verdict form related to whether appellant violated section 794.0115, Florida Statutes (2013). 2