Rivera v. StateRivera v. State
WARNER, J.
We grant appellants motion to correct our written opinion to reflect that appellant was convicted of battery on a law enforcement officer, not aggravated battery, withdraw our previously issued opinion, and substitute the following in its place.
Angel Rivera (“Rivera“) appeals his sentences as a prison releasee reoffender (“PRR“) and habitual felony offender (“HFO“), contending that the evidence offered by the state to prove his recent release from prison on another charge was legally insufficient to prove that he was the defendant in that conviction, because his
Rivera was convicted of battery on a law enforcement officer and resisting arrest with violence. The state sought the imposition of enhanced penalties under the Prison Releasee Reoffender Act and as a habitual offender. At the sentencing hearing, the state presented three convictions of Rivera. A fingerprint analyst with the Broward County Sheriffs Office testified that she compared a set of fingerprints taken from Rivera in court to three certified copies of convictions. In cases numbered 95-10861 (burglary of a dwelling and grand theft) and 95-01862 (burglary of a dwelling and petit theft), the fingerprints on the copies of conviction matched Rivera‘s prints. The analyst was not able to obtain a comparison of Rivera‘s prints to those on the copy of conviction in case number 99-8186 because the prints on the copy were of bad quality. Rivera denied that he was convicted in case 99-8186.
The state presented an affidavit of Dianne Thompson, correctional services assistant administrator of the Central Records Office with the Florida Department of Corrections, in which she averred “that the last release date for inmate Angel Rivera, DC # 997213, H/M, DOB: 10/17/78, was August 1, 2000, case # 99-8186, Broward County, Florida.” The affidavit did not include the release dates from prison for Rivera‘s 1995 convictions for which fingerprint identification was confirmed. In ruling on Rivera‘s status, the court first said to the state, “You have one [set of] fingerprints that were identifiable.” The State responded, “Two.” The court noted that two was all that was needed under the statute, and the prosecutor qualified his response, explaining that he needed one qualifying offense with another offense within five years of the offense. The court stated that the two convictions satisfied that, to which the state responded, “Right.” Based upon this evidence, the trial court determined Rivera was a PRR and sentenced him to the five-year minimum mandatory term. It also found Rivera was a HO and sentenced him to five years and one day, to run concurrently.
Rivera filed a
In order to sentence Rivera as a PRR, the state had to prove that Rivera committed the current crime, constituting an offense involving the threat or use of physical force or violence against an individual, within three years of release from a state correctional facility. See
With respect to the habitual offender sentence, the trial court may impose an HFO sentence if the defendant has been convicted of two or more felonies, and the instant felony was committed within five years of either the conviction date or the date of release from incarceration or supervision imposed as a result of the prior felony. See
In arguing for affirmance, the state relies on the 1999 conviction for which no fingerprint identification exists. The trial court did not rely on this conviction, and we assume it was because no fingerprint identification connected it to Rivera, as the court questioned how many convictions were proved by fingerprints. Nevertheless, the state suggests that even though the conviction was not proved by fingerprints, the prison record custodians affidavit attested that Angel Rivera, with a birthdate the same as this appellant, was released from incarceration for that 1999 conviction in August 2000. We deem this affidavit to be insufficient when the state did not connect the underlying conviction to Rivera. We have approved identification for sentencing purposes based upon a photograph of the defendant, rather than fingerprints, see Wencel v. State, 768 So.2d 494, 495 (Fla. 4th DCA 2000), but we have never approved a finding that evidence of the same name and birthdate constitutes proof of the defendants conviction or release status. While Stabile v. State, 790 So.2d 1235, 1238 (Fla. 5th DCA 2001), approved a prison records custodians affidavit attesting to the defendants prison release date as admissible under the business records exception to the hearsay rule,
For these reasons, we reverse the sentences of Rivera and remand for resentencing. If the state can prove the 1999 conviction is of Rivera, and his release date for that conviction, then it is not precluded from again seeking a prison releasee reoffender or habitual offender sentence for Rivera. See Osborne v. State, 820 So.2d 1046, 1048 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 744, 745 (Fla. 4th DCA 2002).
STEVENSON and GROSS, JJ., concur.