Delevaux v. State, 3D99-1939

3D99-1939 | Fla. Dist. Ct. App. | Aug 2, 2000

762 So. 2d 1062" date_filed="2000-08-02" court="Fla. Dist. Ct. App." case_name="Delevaux v. State">762 So. 2d 1062 (2000)

Eugene DELEVAUX, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D99-1939.

District Court of Appeal of Florida, Third District.

August 2, 2000.

Eugene Delevaux, in proper person.

Robert A. Butterworth, Attorney General, and Lara J. Edelstein, Assistant Attorney General, for appellee.

Before COPE, SHEVIN and SORONDO, JJ.

ON MOTION FOR REHEARING

PER CURIAM.

We grant rehearing and withdraw the opinion filed February 23, 2000. As the state properly concedes, the trial court improperly sentenced defendant as an habitual violent felony offender based on the predicate offense of strong-arm robbery. The record reveals that the court withheld adjudication on that offense and sentenced defendant to probation. Defendant committed the present crime after termination of probation for the strong-arm robbery offense. Accordingly, the strong-arm robbery offense may not serve as a predicate to qualify defendant as a habitual offender. See § 775.084(2), Fla. Stat. (1993). We, therefore, vacate defendant's sentence and remand for re-sentencing. The trial court may consider re-sentencing defendant as a habitual offender if defendant's prior record would properly support habitualization. Otherwise, defendant must be resentenced under the guidelines.

The order denying the post-conviction relief motion is affirmed in all other respects.

Affirmed in part; reversed and remanded.