State v. Van Bryant

613 So. 2d 474, 18 Fla. L. Weekly Supp. 122, 1993 Fla. LEXIS 166, 1993 WL 32513

Opinion

SHAW, Justice.

We have for review Van Bryant v. State, 602 So.2d 582 (Fla. 4th DCA 1992), wherein the court certified the following question:

Does the holding in Eutsey v. State, 388 So.2d 219 (Fla.1980), that the state has no burden of proof as to whether the convictions necessary for habitual felony offender sentencing have been pardoned or set aside, in that they are “affirmative defenses available to [a defendant],” Eutsey at 226, relieve the trial court of its statutory obligation to make findings regarding those factors, if the defendant does not affirmatively raise, as a defense, that the qualifying convictions provided by the state have been pardoned or set aside?

Van Bryant, 602 So.2d at 583. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

We answered this question in the negative in State v. Rucker, 613 So.2d 460 (Fla. 1993), but held that harmless error analysis may be applied on appeal. We quash the decision of the district court in Van Bryant and remand for proceedings consistent with Rucker, which applies to both habitual felony offenders and habitual violent felony offenders.

It is so ordered.

BARKETT, C.J., and OVERTON, McDonald, GRIMES, KOGAN and HARDING, JJ., concur.