Sambito v. State

782 So. 2d 1012, 2001 Fla. App. LEXIS 5546, 2001 WL 417681

Opinion

PER CURIAM.

We affirm appellant’s appeal of his habitual felony offender sentence. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) does not require findings beyond a reasonable doubt of the fact of a prior conviction. 120 S.Ct. at 2362-63. Appellant argues that Ap-prendi applies to finding necessity for ha-bitualization under section 775.084, Florida Statutes. The statute, however, does not require such a finding. It only requires a finding if the court concludes that habitual-ization is unnecessary where the other requirements of the statute are met. § 775.084(3)(a)6. That finding was not made here, and in any event would not be a fact which must be proved beyond a reasonable doubt. Apprendi, 120 S.Ct. at 2362-63 (distinguishing between facts in aggravation of punishment and facts in mitigation of punishment). Affirmed.

DELL, STONE and KLEIN, JJ., concur.