Valentine v. State

District Court of Appeal of Florida

Valentine v. State

577 So. 2d 714, 1991 Fla. App. LEXIS 3298, 1991 WL 50599

CourtDistrict Court of Appeal of Florida

DecidedApril 11, 1991

DocketNo. 90-741

StatusPublished

Cited by1 cases

This text of 577 So. 2d 714 (Valentine 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.

Bluebook

Valentine v. State, 577 So. 2d 714, 1991 Fla. App. LEXIS 3298, 1991 WL 50599 (Fla. Ct. App. 1991).

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Opinion

DAUKSCH, Judge.

This is an appeal from convictions and sentences. We affirm the convictions and vacate the sentences.

Appellant was convicted of attempted murder 2, possession of a firearm by convicted felon and use of a firearm in commission of a felony. The sentencing judge erred in imposing the mandatory minimum three year sentence for the attempted murder charge because there was no finding by the jury that a firearm was used in the commission of that crime. State v. Overfelt, 457 So.2d 1385 (Fla.1984). The sentence as an habitual offender was also error because appellant was not previously convicted of two or more felonies, as that phrase is defined under Taylor v. State, 558 So.2d 1092 (Fla. 5th DCA 1990). In order to qualify as two or more felonies, the prior convictions must arise from , separate convictions. Here, appellant’s prior convictions were all at the same time and can be considered for habitual offender purposes as only one prior conviction. Taylor. Although the habitual offender statute was amended on October 1, 1989, Taylor is controlling because the present crimes were committed on June 20, 1989, which is before the date of the amendment.

CONVICTIONS AFFIRMED, SENTENCES VACATED; REMANDED for RESENTENCING.

COBB and W. SHARP, JJ., concur.

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DAUKSCH, Judge.

This is an appeal from convictions and sentences. We affirm the convictions and vacate the sentences.

Appellant was convicted of attempted murder 2, possession of a firearm by convicted felon and use of a firearm in commission of a felony. The sentencing judge erred in imposing the mandatory minimum three year sentence for the attempted murder charge because there was no finding by the jury that a firearm was used in the commission of that crime. State v. Overfelt, 457 So.2d 1385 (Fla.1984). The sentence as an habitual offender was also error because appellant was not previously convicted of two or more felonies, as that phrase is defined under Taylor v. State, 558 So.2d 1092 (Fla. 5th DCA 1990). In order to qualify as two or more felonies, the prior convictions must arise from , separate convictions. Here, appellant’s prior convictions were all at the same time and can be considered for habitual offender purposes as only one prior conviction. Taylor. Although the habitual offender statute was amended on October 1, 1989, Taylor is controlling because the present crimes were committed on June 20, 1989, which is before the date of the amendment.

CONVICTIONS AFFIRMED, SENTENCES VACATED; REMANDED for RESENTENCING.

COBB and W. SHARP, JJ., concur.

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Bluebook (online)

577 So. 2d 714, 1991 Fla. App. LEXIS 3298, 1991 WL 50599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentine-v-state-fladistctapp-1991.

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