Moore v. State

Apr 7, 1993
No. 92-1616
Versions:616 So. 2d 596
1993 Fla. App. LEXIS 3684
1993 WL 100216

Concurrence Opinion

POLEN, Judge,

concurring specially:

I agree with the majority's reversal of appellant’s sentence as an habitual violent felony offender, but I would again certify the question we originally certified in Scott v. State, 550 So.2d 111 (Fla. 4th DCA 1989):

MAY THE HABITUAL OFFENDER STATUTE BE APPLIED TO A DEFENDANT WHO WAS ORIGINALLY SUBJECT TO THE STATUTE BUT WAS INSTEAD PLACED ON PROBATION AND WHOSE PROBATION WAS LATER REVOKED?

Review was dismissed in Scott at 560 So.2d 235 (Fla.1990), so the supreme court has not yet addressed the question certified. Since the fifth district has now held otherwise in Snead, as noted by the majority, *597perhaps the supreme court will revisit (or visit) this issue.





Lead Opinion

PER CURIAM.

Eddie Moore appeals his sentence as a habitual violent felony offender. The trial court enhanced his sentence upon the revocation of his community control. We reverse and remand for resentencing. The trial court erred when it sentenced appellant as a habitual offender upon the revocation of his community control where it had not originally sentenced him as a habitual offender. See Scott v. State, 550 So.2d 111 (Fla. 4th DCA 1989), review dismissed, 560 So.2d 235 (Fla.1990). We certify conflict with Snead v. State, 598 So.2d 316 (Fla. 5th DCA), juris, accepted, 605 So.2d 1266 (Fla.1992).

REVERSED and REMANDED.

DELL and WARNER, JJ., concur. POLEN, J., concurs specially with opinion.