Kinney v. State

District Court of Appeal of Florida

Kinney v. State

441 So. 2d 1163, 1983 Fla. App. LEXIS 24210

CourtDistrict Court of Appeal of Florida

DecidedNovember 23, 1983

DocketNo. 83-345

StatusPublished

Cited by2 cases

This text of 441 So. 2d 1163 (Kinney 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.

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Kinney v. State, 441 So. 2d 1163, 1983 Fla. App. LEXIS 24210 (Fla. Ct. App. 1983).

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Opinion

RYDER, Acting Chief Judge.

Michael W. Kinney appeals his convictions and sentences for attempted first degree murder, robbery with a weapon, and grand theft. Kinney contends the trial court erred in denying his motion to suppress and in sentencing him as a habitual offender with respect to the first degree murder and grand theft convictions. We find no merit in Kinney’s first contention. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, we must vacate the enhanced sentences because neither the written judgment nor the sentence indicates Kinney was found to be a habitual offender, and the record, including the sentencing hearing, does not sufficiently show Kinney was properly determined to be a habitual offender in accordance with section 775.084, Florida Statutes (1981).

Accordingly, the three convictions and sentence for robbery with a weapon are affirmed. The sentences for attempted first degree murder and grand theft are vacated, and the trial court is directed on remand to impose either standard sentences for those two convictions or appropriate enhanced sentences only after a determination pursuant to section 775.084 that Kinney is indeed a habitual offender.

AFFIRMED in part, REVERSED in part.

DANAHY and SCHOONOVER, JJ., concur.

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RYDER, Acting Chief Judge.

Michael W. Kinney appeals his convictions and sentences for attempted first degree murder, robbery with a weapon, and grand theft. Kinney contends the trial court erred in denying his motion to suppress and in sentencing him as a habitual offender with respect to the first degree murder and grand theft convictions. We find no merit in Kinney’s first contention. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, we must vacate the enhanced sentences because neither the written judgment nor the sentence indicates Kinney was found to be a habitual offender, and the record, including the sentencing hearing, does not sufficiently show Kinney was properly determined to be a habitual offender in accordance with section 775.084, Florida Statutes (1981).

Accordingly, the three convictions and sentence for robbery with a weapon are affirmed. The sentences for attempted first degree murder and grand theft are vacated, and the trial court is directed on remand to impose either standard sentences for those two convictions or appropriate enhanced sentences only after a determination pursuant to section 775.084 that Kinney is indeed a habitual offender.

AFFIRMED in part, REVERSED in part.

DANAHY and SCHOONOVER, JJ., concur.

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441 So. 2d 1163, 1983 Fla. App. LEXIS 24210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinney-v-state-fladistctapp-1983.

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