Mitchell v. State

678 So. 2d 515, 1996 Fla. App. LEXIS 9099, 1996 WL 487855

Opinion

PER CURIAM.

Willie Mitchell appeals his conviction and sentence for attempted armed burglary of a dwelling. We affirm appellant’s conviction and reverse his sentence as a habitual violent felony offender.

The state sought to have appellant adjudicated as a habitual violent felony offender. At the sentencing hearing, the trial court took judicial notice of original judgments and sentences for appellant in three felony cases: two 1987 cases and one 1992 case. The state’s expert testified that the fingerprints in those cases matched appellant’s fingerprints. Appellant’s counsel objected, arguing only that appellant’s record did not qualify him as a violent offender. The trial court sentenced appellant as a habitual violent offender resulting in a sentence of thirty years’ imprisonment without eligibility for release for ten years.

Section 775.084(3)(d), Florida Statutes (1993) requires the trial court to find by a preponderance of the evidence each factor necessary to impose a habitual felony offender sentence pursuant to section 775.084(l)(a) or a habitual violent felony offender sentence pursuant to section 775.084(l)(b). The record demonstrates that appellant had a prior felony conviction within five years of the commission of the instant offense as required by section 775.084(l)(b)2. The record does not show nor did the trial court find that the prior 1992 felony was one of the enumerated felonies necessary to classify appellant as a habitual violent felony offender.¹

Accordingly, we reverse appellant’s sentence as a habitual violent felony offender. Since the record does not disclose the nature of the 1992 conviction and appellant did not object to the prior convictions at the time he was sentenced, we remand with leave to the state to prove that appellant meets the requirements for habitual offender sentencing. Ford v. State, 592 So.2d 348 (Fla. 2d DCA 1992); Davis v. State, 588 So.2d 289 (Fla. 2d DCA 1991).

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

DELL and PARIENTE, JJ., and MAY, Melanie G., Associate Judge, concur.

1 . Section 775.084(l)(b)l lists the enumerated felonies as arson, sexual battery, robbery, kidnapping, aggravated child abuse, aggravated assault, murder, manslaughter, unlawful throwing, placing, or discharging of a destructive device or bomb, armed burglary or aggravated battery.