Kinney v. State

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

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.