Powell v. State

District Court of Appeal of Florida

Powell v. State

133 So. 3d 594, 2014 WL 784260, 2014 Fla. App. LEXIS 2660

CourtDistrict Court of Appeal of Florida

DecidedFebruary 26, 2014

DocketNo. 1D13-1565

StatusPublished

Cited by4 cases

This text of 133 So. 3d 594 (Powell 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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Powell v. State, 133 So. 3d 594, 2014 WL 784260, 2014 Fla. App. LEXIS 2660 (Fla. Ct. App. 2014).

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Opinion

PER CURIAM.

Defendant was convicted of aggravated battery of a person over 65. The trial court sentenced him as a habitual violent felony offender under section 775.084(4)(b), Florida Statutes (2012), and a violent career criminal under section 775.084(4)(d). A defendant may be sentenced for one criminal conviction under only one recidivist category from section 775.084, even if the defendant meets the criteria for more than one. See Clines v. State, 912 So.2d 550 (Fla.2005). We affirm, however, because defendant did not object at sentencing or file a motion under Florida Rule of Criminal Procedure 3.800(b)(2). See A.L.B. v. State, 23 So.3d 190 (Fla. 1st DCA 2009). We certify the following question as we did in A.L.B.

NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY IN SUCH A CASE?

We AFFIRM defendant’s conviction and sentence without prejudice to his right to seek post-conviction relief. See Jones v. State, 964 So.2d 855 (Fla. 2d DCA 2007).

BENTON, PADOVANO, and ROBERTS, JJ., concur.

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PER CURIAM.

Defendant was convicted of aggravated battery of a person over 65. The trial court sentenced him as a habitual violent felony offender under section 775.084(4)(b), Florida Statutes (2012), and a violent career criminal under section 775.084(4)(d). A defendant may be sentenced for one criminal conviction under only one recidivist category from section 775.084, even if the defendant meets the criteria for more than one. See Clines v. State, 912 So.2d 550 (Fla.2005). We affirm, however, because defendant did not object at sentencing or file a motion under Florida Rule of Criminal Procedure 3.800(b)(2). See A.L.B. v. State, 23 So.3d 190 (Fla. 1st DCA 2009). We certify the following question as we did in A.L.B.

NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY IN SUCH A CASE?

We AFFIRM defendant’s conviction and sentence without prejudice to his right to seek post-conviction relief. See Jones v. State, 964 So.2d 855 (Fla. 2d DCA 2007).

BENTON, PADOVANO, and ROBERTS, JJ., concur.

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133 So. 3d 594, 2014 WL 784260, 2014 Fla. App. LEXIS 2660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-fladistctapp-2014.

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