Speights v. StateSpeights v. State
Jason Tyrone Speights appeals his sentence, rendered July 14, 1997, asserting that it is illegal. Speights was found guilty of aggravated battery with great bodily harm for an attack on his girlfriend, which left her with two compound jaw fractures, and was acquitted of aggravated assault with a deadly weapon. The State had filed notice of intent to classify the defendant as a Habitual Violent Felony Offender (HVFO), based upon a prior conviction for attempted carjacking with a deadly weapon. Because the defense raised no objection at any time below to reliance upon the attempted carjacking conviction as the predicate offense for an HVFO sentence, and made no motion below to correct the sentence after Speights was in fact given an HVFO sentence, and because the sentence does not exceed the statutory maximum term of imprisonment for the habitualized offense, we affirm.
On appeal, Speights argues that his HVFO sentence is illegal because carjacking is not a statutorily authorized predicate offense for habitualization and that he was prejudiced by that error because imposition of an HVFO sentence increased his term of incarceration by approximately 16 years. Carjacking is not a statutorily listed predicate offense for an HVFO sentence. See
In Washington v. State, 653 So.2d 362, 367 (Fla.1994), cert. denied mem., 516 U.S. 946, 116 S.Ct. 387, 133 L.Ed.2d 309 (1995), however, the Florida Supreme Court held that it is “improper” to sentence someone under the Habitual Violent Felony Offender Statute in reliance upon a predicate offense outside those listed in the statute, and did not use the word “illegal.” The cases in which this court previously held that a habitual offender sentence is “illegal” if imposed in the absence of a statutorily defined predicate offense predated both Washington v. State and the enactment of the Criminal Appeal Reform Act of 1996, as well as other cases in which the meaning of the word “illegal” in the context of sentencing error has been narrowed. See Davis v. State, 661 So.2d 1193 (Fla.1995); State v. Callaway, 658 So.2d 983 (Fla.1995). The Florida Supreme Court explained in Davis, supra, that an “illegal” sentence is one that exceeds the maximum set forth by law. The court added in Callaway, supra, that an “illegal” sentence is correctable as a matter of law without any evidentiary proceeding. Appellant asks this court to conclude that his sentence was illegal as a matter of law because no enumerated predicate offense appears in the record; yet, if this sentence was vacated for lack of a proper predicate offense, the state could present evidence on remand of additional prior convictions which might justify an HVFO sentence. See Doggett v. State, 584 So.2d 116 (Fla. 1st DCA 1991) (it does not violate double jeopardy to permit the state to introduce evidence of additional predicate offenses beyond those relied upon originally if a habitual offender sentence is overturned because it was based
Speights next argues that the resulting sentence is itself illegal on the grounds that it exceeds the statutory maximum for the offense. We reject the argument that this sentence is illegal based upon the length of the sentence. Speights was sentenced to 22 years imprisonment. He was convicted of aggravated battery, a second degree felony. The offense of aggravated battery is punishable as provided in sections 775.082, 775.083, or 775.084. See
When a habitual violent felony offender sentence is imposed without record evidence of a prior conviction of an enumerated predicate felony, but without any objection by the defendant to the imposition of such a sentence, and the resulting sentence is above the statutory maximum without habitualization but below the statutory maximum period of incarceration after habitualization, is the sentencing error one that may be raised on appeal for the first time, and corrected despite the lack of any motion in the trial court to correct the sentence pursuant to Fla.R.Crim.P. 3.800(b)?
AFFIRMED.
MICKLE and LAWRENCE, JJ., concur.