Osborne v. StateOsborne v. State
Robert A. Butterworth, Attorney General, Tallahassee, and Consuelo Maingot, Assistant Attorney General, West Palm Beach, for appellee.
HAZOURI, J.
Appellant, James Osborne, was charged with burglary of a dwelling and grand theft in 1997. At trial, he was found guilty of the burglary of a dwelling and guilty of the lesser included offense of petit theft. In 1998, appellant was sentenced to forty years in prison as a violent career criminal with a thirty year mandаtory minimum. After appeal, his case was remanded for re-sentencing pursuant to Salters v. State, 758 So. 2d 667 (Fla. 2000) (violent career criminal sentencing provision unconstitutional for offenses committed during window period from October 1, 1995, to May 24, 1997). See Osborne v. State, 768 So. 2d 444 (Fla. 2000).
In Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA 2001), this court held:
Before the trial court may impose a habitual felony offender sentence, it must find, based on reсord evidence, that the defendant has been previously convicted of any combination of two or more felonies and that the current felony occurred either (a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a prior felony conviction; or (b) within five years from the date of сonviction for the defendant‘s last prior felony or within five years from the date of the defendant‘s release frоm prison or supervision for a prior felony offense. See
§ 775.084(1)(a)2.a., Fla. Stat. (1999) ; see also Sanders v. State, 765 So. 2d 161 (Fla. 2d DCA 2000). Thus, the state must provide record evidence of the dаte of the current felony offense, the date of the conviction for the last prior felony, and the date thе defendant was released from any prison term or supervision imposed for the last felony conviction. See Lowenthal v. State, 699 So. 2d 319, 320 (Fla. 2d DCA 1997).
Id. at 318. Additionally, the felony for which the defendant is to be sentenced and one of the two prior felony convictions may not be a violation of
The offense in this case was committed on February 5, 1997. Therefore, the state was required to prove that appellant was convicted of a felony or released from prison on a felony conviction after February 5, 1992. Appellant argues that pursuant to Mitchell v. State, 780 So. 2d 282 (Fla. 4th DCA 2001), the state failed to present sufficient evidence that he was previously convicted of a felony within five years from the date of conviction for the current felony offense as requirеd to classify him as a habitual felony offender.
The state argues that the trial court‘s review of the court file and PSI rеport listing the 1993 conviction was sufficient evidence on which to find that Osborne was a habitual felony offender.
In Mitchell, which is strikingly similаr to the instant case, this court held that a court file which contained information of a conviction is insufficient proof of a conviction,
In the instant case, no proof of appellant‘s prior convictions or the date of his release were admitted into evidеnce at the sentencing hearing. Based upon this court‘s decision in Mitchell, the evidence presented in this case is insufficient for purposes of habitual felony offender sentencing.
On remand, the trial court may again consider whether the habitual offender statute should be applied to appellant. See King v. State, 580 So. 2d 169 (Fla. 4th DCA 1991); Olsen v. State, 691 So. 2d 17 (Fla. 3d DCA 1997). If the state is able to prove with record evidence that appellant meets the requirements for habitualization, the trial court may again sentence him as a habitual felony offender. See Cameron v. State, 807 So. 2d 744 (Fla. 4th DCA 2002); Boyd, 776 So. 2d at 319.
Reversed and remanded for resentencing.
WARNER and STEVENSON, JJ., concur.