Florida/Georgia Personal Injury & Workers Compensation

...State, 600 So.2d 1228 (Fla. 1st DCA 1992), in which the district court certified the following questions as being of great public importance: 1. Does it violate a defendant's substantive due process rights when he is classified as a violent felony offender pursuant to section 775.084, and thereby subjected to an extended term of imprisonment, if he has been convicted of an enumerated violent felony within the previous five years, even though his present offense is a nonviolent felony? 2. Does section 775.084(1)(b) violate the constitutional protection against double jeopardy by increasing a defendant's punishment due to the nature of a prior offense? Id....

...o sell after he sold a small quantity of cocaine to a confidential informant. The case went to trial and the jury found Hale guilty on both counts. The State filed a notice of intent to have Hale sentenced as a habitual violent felony offender under section 775.084(1)(b), Florida Statutes (1991), [2] asserting that Hale *523 had been convicted of aggravated assault in 1989, as well as other felonies. The aggravated assault judgment, as well as the other judgments, were entered into evidence without objection. The court found Hale to be a habitual violent felony offender under section 775.084(1)(b), Florida Statutes (1991)....

...one-half years; however, because Hale was found to be a habitual violent felony offender, the trial judge had the discretion to sentence Hale to a maximum of thirty years per count, with each count carrying a ten-year minimum mandatory sentence. See § 775.084(4)(b), Fla....

...ch sentence carrying a ten-year minimum mandatory sentence. Accordingly, Hale would serve a minimum of twenty years before being eligible for parole. On appeal to the First District Court of Appeal, Hale argued that: (1) enhancing his sentence under section 775.084 violates due process, double jeopardy, and equal protection; and (2) imposing consecutive twenty-five year sentences, with the resulting twenty-year minimum mandatory sentence, constitutes cruel or unusual punishment as prohibited by article I, section 17, of the Florida Constitution....

...Daniels, 595 So.2d at 953. The statutes which prescribed the sentence for each crime did not provide for minimum mandatory sentences; however, because Daniels was found to be a habitual violent felony offender, the sentences were enhanced by the trial judge under section 775.084, Florida Statutes (Supp....

...None of the statutes under which Hale was sentenced contain a provision for a minimum mandatory sentence. For the same rationale set out in Daniels we find that Hale's enhanced maximum sentences must run concurrently. In Daniels we recognized that by enacting sections 775.084 and 775.0841, Florida Statutes (Supp....

...I still adhere to my opinion that the conviction of one violent felony does not make a person a habitual violent felony offender. But since I have not prevailed on that point I therefore concur in the balance of the majority opinion. NOTES [1] We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. [2] Section 775.084(1)(b), Florida Statutes (1991), reads as follows: As used in this act: ......

...life felony. See Lamont v. State, 610 So.2d 435, 438 (Fla.1992) ("Both the plain language and the history of the relevant statutes lead us to hold that one convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084."); Carter, 704 So.2d at 1070....

...g granted, 761 So.2d 1025 (Fla.2000). This is due in part to the multitude of sentencing statutes that have proliferated since the Court first adopted rule 3.800. In addition, many of these laws are frequently amended. The habitual offender statute, section 775.084, which authorizes extended terms of imprisonment for those who meet the statutory requirements, is but one prominent example....

...the habitual offender statute in effect at the time of the offense prohibited the imposition of a habitual offender sentence. Carter, who was convicted of a life felony, received a habitual offender sentence when, as a matter of law, the version of section 775.084, Florida Statutes, in effect at the time of the sentencing unquestionably did not permit habitualization for life felonies....

...o express and direct conflict at the time the Court accepted jurisdiction). [3] The Legislature amended the habitual felony offender statute to apply to life felonies effective October 1, 1995. See ch. 95-182 § 2, at 1669, Laws of Fla. (codified at § 775.084(4)(a), (b) Fla....

...circumstances involved. I. FACTS AND PROCEDURAL HISTORY In 2000, Respondent, Bill Monroe Hearns, was convicted of unlawful possession of a firearm by a three-time convicted felon. The trial court designated him a violent career criminal (VCC) under section 775.084, Florida Statutes (2000), and pursuant to that statute sentenced him to life in prison....

...§ 784.07(2)(b) (emphasis added). The underlying conduct required for simple battery and BOLEO is identical. The only differences are the status of the victim and the penalty imposed. 2. The VCC and the Forcible Felony Statutes The violent career criminal statute, section 775.084(1)(d), Florida Statutes (2000), is intended to deter recidivism by imposing longer sentences on repeat offenders....

...Aggravated stalking . . . c. Aggravated child abuse . . . d. Aggravated abuse of an elderly person . . . e. Lewd, lascivious, or indecent conduct . . . f. Escape . . . g. A felony violation of chapter 790 involving the use or possession of a firearm. § 775.084(1)(d)(1) (emphasis added)....

...Thus, we approve the district court's holding that the record does not have to show that a defendant knowingly and intelligently waived the right to parole eligibility if it shows that he affirmatively selected the guidelines. We disapprove, however, the district court's holding that the habitual offender statute (section 775.084, Florida Statutes (1985)) is an adequate reason to depart from the sentencing guidelines (Florida Rule of Criminal Procedure 3.701 promulgated under the authority of section 921.001, Florida Statutes (1985))....

...In order to retain the habitual offender statute, we would have to conclude that either the sentencing guidelines are not applicable to "statutory" habitual offenders (i.e., those defendants whom the state seeks to punish pursuant to the specific provisions of section 775.084, Florida Statutes) or, if applicable, that the habitual offender statute may be used in and of itself as a legitimate reason to depart from the guidelines....

...mmitted prior to October 1, 1983 in which the defendant does not affirmatively select to be sentenced under the guidelines. The statute does not exempt defendants sentenced under the habitual offender statute. Although the legislature did not repeal section 775.084 when it adopted the guidelines, we believe the goals of that section are more than adequately met through application of the guidelines....

...from the recommended sentence. In short, the objectives and considerations of the habitual offender statute are fully accommodated by the sentencing guidelines. In light of this, and the clear language of section 921.001(4)(a), we must conclude that section 775.084 cannot be considered as providing an exemption for a guidelines sentence. *866 The next question, then, is whether section 775.084 can be considered an adequate reason for a departure sentence....

...It is true that the 1985 committee note to Florida Rule of Criminal Procedure 3.701(d)(10) implies that the habitual offender statute may be used as a basis for departing from the guidelines. That note provides in part: If the offender is sentenced under section 775.084 (habitual offender), the maximum allowable sentence is increased as provided by the operation of that statute....

...In addition, we find persuasive the view taken by our sister states with experience in the sentencing guidelines field. Minnesota's sentencing guidelines scheme is substantially similar to our own. Minnesota had a habitual offender statute, similar to Florida's section 775.084, which premised enhancement on prior criminal record and dangerousness....

...idered in determining the presumptive sentence). Accordingly, we cannot agree with the district court when it finds that habitual offender status is an adequate reason to depart from the recommended guidelines sentence. To the contrary, we hold that section 775.084 cannot operate as an alternative to guidelines sentencing because of the clear directives of section 921.001(4)(a)....

...I would construe these two statutes in a way that would allow the habitual offender statute to be used as a ground to depart from the sentence guidelines when based on a finding that the sentence departure is necessary for the "protection of the public." See § 775.084(3), Fla....

...The sentencing guidelines do not include a "protection of the public" finding as part of a prior offense computation. In my view, the use of this additional element as a departure ground is a proper workable construction of both statutes. NOTES [1] Section 775.084(3), Florida Statutes (1985), provides: (3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender or an habitual misdemeanant....

...Rothenburg and Jamie Spivey, Asst. Public Defenders, Second Judicial Circuit, Tallahassee, for respondent/appellee. *2 OVERTON, Justice. We have for review Johnson v. State, 589 So.2d 1370 (Fla. 1st DCA 1991), in which the district court held that the amendments to section 775.084, Florida Statutes (1989) (the habitual violent felony offender statute), contained in chapter 89-280, Laws of Florida, violated the single subject rule of article III, section 6, of the Florida Constitution....

...[1] The district court acknowledged conflict with Jamison v. State, 583 So.2d 413 (4th DCA), rev. denied, 591 So.2d 182 (Fla. 1991), and McCall v. State, 583 So.2d 411 (Fla. 4th DCA 1991), [2] and certified the following to be a question of great public importance: WHETHER THE CHAPTER 89-280 AMENDMENTS TO SECTION 775.084(1)([b])(1), FLORIDA STATUTES (1989), WERE UNCONSTITUTIONAL PRIOR TO THEIR REENACTMENT AS PART OF THE FLORIDA STATUTES, BECAUSE IN VIOLATION OF THE SINGLE SUBJECT RULE OF THE FLORIDA CONSTITUTION....

...Through an information filed on July 23, 1990, Johnson was charged with the sale or delivery of cocaine. The offense occurred on July 5, 1990. Subsequently, the prosecution filed a notice of intent to classify Johnson as a habitual violent felony offender pursuant to section 775.084....

...On appeal, Johnson contested his sentence on the grounds that the amendments to the habitual offender statute contained in chapter 89-280 violated the single subject rule of article III, section 6, of the Florida Constitution. Chapter 89-280 contained amendments to sections 775.084, 775.0842, and 775.0843, Florida Statutes (1989), governing sentences for habitual felony offenders, and amendments to chapter 493, Florida Statutes (1989), relating to the repossession of personal property and the licensing requirements of persons authorized to repossess such property. Critical to Johnson's sentencing was the amendment to section 775.084(1)(b)(1)k, which added to the habitual violent felony offender category, a defendant who was previously convicted of an "aggravated battery." Chapter 89-280 was enacted effective October 1, 1989....

...cess. D'Oleo-Valdez v. State, 531 So.2d 1347 (Fla. 1988); Ray v. State, 403 So.2d 956 (Fla. 1981). A review of the chapter law at issue reflects that it affects a quantifiable determinant of the length of sentence that may be imposed on a defendant. Section 775.084 allows a court to impose a substantially extended term of imprisonment on those defendants who qualify under the statute. Under the amendments to section 775.084 contained in chapter 89-280, Johnson was sentenced to a maximum sentence of twenty-five years, with a minimum mandatory sentence of ten years....

...Kemp, 396 So.2d 1122 (Fla. 1981). In applying that purpose to chapter 89-280, we note the district court's description of that law: The title of the act at issue designates it an act relating to criminal law and procedure. The first three sections of the act amend section 775.084, Florida Statutes, pertaining to habitual felony offenders; section 775.0842, Florida Statutes, pertaining to career criminal prosecutions; and section 775.0843, Florida Statutes, pertaining to policies for career criminal cases....

...We hold that chapter 89-280 violates article III, section 6, of the Florida Constitution. However, we conclude that chapter 91-44's biennial reenactment of chapter 89-280, effective May 2, 1991, cured the single subject violation as it applied to all defendants sentenced under section 775.084 whose offenses were committed after that date....

...See Loxahatchee River Envtl. Control Dist. v. School Bd., 515 So.2d 217 (Fla. 1987); State v. Combs, 388 So.2d 1029 (Fla. 1980). We realize that this decision will require the resentencing of a number of individuals who were sentenced as habitual felony offenders under section 775.084 as amended by chapter 89-280 and whose offenses were committed before May 2, 1991. However, the resentencing requirement will apply only to those defendants affected by the amendments to section 775.084 contained in chapter 89-280, such as the addition of the aggravated battery conviction category at issue here....

...nstitutional single subject requirement. As such, in Johnson the First District acknowledged conflict with McCall. However, the record in McCall reflects that McCall's sentence is actually outside the scope of this review. McCall was sentenced under section 775.084 because of several prior felony convictions, including delivery of cocaine and grand theft....

...BARKETT, Justice. We review Burdick v. State, 584 So.2d 1035, 1039 (Fla. 1st DCA 1991), in which the district court certified the following two questions of great public importance: [1] [1.] Is a life sentence permissive or mandatory under the 1988 amendment to section 775.084(4)(a)1, Florida Statutes? [2.] Is a first degree felony punishable by a term of years not exceeding life imprisonment subject to an enhanced sentence of life imprisonment pursuant to the provisions of the habitual felony offender statute? We answer the first question by holding that sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive, *268 not mandatory....

...We answer the second question in the affirmative. [2] Petitioner Billy Burdick was convicted, among other offenses, [3] of armed burglary of a dwelling, a first-degree felony punishable by life imprisonment. [4] Burdick was sentenced as a habitual felony offender under section 775.084(4)(a)(1), Florida Statutes (1989), to a term of life imprisonment....

...In the case of a felony of the second degree, for a term of years not exceeding 30, and such offenders shall not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. § 775.084(4)(a), (b), Fla. Stat. (1989) (emphasis added). Burdick argues that, by its terms, section 775.084(4)(a) does not specifically provide for enhancement for first-degree felonies punishable by life imprisonment [5] and thus he must be sentenced under the guidelines....

...network of recommended and permitted ranges. Moreover, defendants sentenced under the habitual offender statute are not eligible for basic gain time while defendants sentenced under the guidelines are eligible for both incentive and basic gain time. § 775.084(4)(e), Fla....

...ree felony punishable by life." Just as the district court declined this invitation, so must this Court. We cannot rewrite legislative acts. In response to the second certified question, Burdick argues that a trial judge sentencing a defendant under section 775.084(4)(a)(1) is not required to impose the maximum penalty provided in the statute, but rather can sentence the defendant anywhere up to the maximum sanction....

...In Brown the Court held that "when a felony offender is properly habitualized and the guidelines sentence is less than life, the trial judge may not exceed the guidelines' recommendation absent a valid reason for doing so, notwithstanding the mandatory language of section 775.084(4)(a)1." 530 So.2d at 53. In so holding, the Court made a number of observations regarding the legislative history behind section 775.084(4)(a)(1): We are further persuaded that the legislature never intended section 775.084(4)(a)1. to be mandatory. The word "shall" as used in section 775.084(4)(a)1....

...ture itself never inserted the word in the statute and that the word "shall" either was an editorial error or a misapprehension of actual legislative intent by the editors. Both chapters 75-116 and 75-298, Laws of Florida, the only two laws amending section 775.084 during the 1975 session, clearly use the word "may." This expresses an unequivocal legislative intent that the life sentence should be permissive, not mandatory....

...Now, the State argues, the factual predicate for Brown has changed because in 1988 the legislature amended the habitual offender statute to make habitual offender sentencing independent of the sentencing guidelines. Ch. 88-131, § 6, Laws of Fla. Therefore, under the ambit of section 775.084(4)(e), Florida Statutes (1989), [6] the life sentences in subsections 4(a)(1) and 4(b)(1) of the habitual offender statute can now be read as mandatory, as the legislature originally intended, because those sentences can be imposed regardless of the guidelines' recommendations. In short, the State argues that the legislature amended section 775.084 to change the Court's interpretation of the habitual offender statute in Brown and thus it is irrelevant that the 1988 amendments did not correct the inconsistent use of the word "shall" in subsection 4(a) and the word "may" in subsection 4(b). We disagree. In reality, it appears that the legislature amended section 775.084 contemporaneously with or shortly after the release of the Brown decision....

...Thus, contrary to the State's assertion, it seems clear that the legislature has now at least tacitly approved, not rejected, this Court's interpretation of subsection (4)(a) as providing for a permissive, as opposed to a mandatory, life sentence. In any event, we note that our harmonious construction of section 775.084(4)(a) and section 775.084(4)(b) makes eminent sense....

...There is no reason why the legislature would have mandated life sentences for habitual first-degree felony offenders but left permissive the sentencing for habitual first-degree violent felony offenders. If anything, logic would dictate that the legislature would have intended the reverse. It follows that section 775.084(4)(b), which expressly uses the discretionary word "may," is also permissive as to life sentencing....

...State, 582 So.2d 819, 819 (Fla. 2d DCA 1991); Newton v. State, 581 So.2d 212, 213 (Fla. 4th DCA 1991); Westbrook v. State, 574 So.2d 1187, 1188 (Fla. 3d DCA 1991); Paige v. State, 570 So.2d 1108, 1109 (Fla. 5th DCA 1990). We also hold that sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive, not mandatory. As a result, because the State argued that a life sentence is mandatory under section 775.084(4)(a)(1), and because the trial court in this case did not indicate whether it believed it could in fact decline to impose a life sentence, we remand for the trial court to reconsider the sentence as within its discretion....

...I concur with the portion of the majority opinion which holds that a first-degree felony punishable by a term of years not exceeding life is subject to enhancement under the habitual felony offender statute. However, I disagree with the majority's construction of section 775.084(4), Florida Statutes (1989). In my view, this Court has no authority to change the word "shall" in section 775.084(4)(a)(1), Florida Statutes (1989), to mean "may." The majority opinion has determined that the legislature, in its enactment of sections 775.084(4)(a) and 775.084(4)(b), adopted "obviously inconsistent language in subsections (4)(a) and (4)(b)." At 271 (Fla....

...In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. § 775.084(4)(a), (b), Fla....

...a firearm. [4] Section 810.02(2), Florida Statutes (1989), provides in part that "[b]urglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084." [5] We use the terms "punishable by life," "punishable by life imprisonment," and "punishable by a term of years not exceeding life imprisonment," synonymously, as distinguished from a "life felony." [6] Section 775.084(4)(e) reads in relevant part: "A sentence imposed under this section shall not be subject to the provisions of [the sentencing guidelines]." [7] State v....

...Salters' case proceeded to trial in July 1997, and the jury found him guilty as charged. [2] The trial court adjudicated Salters guilty and deferred sentencing to a later date. Prior to sentencing, the State filed a request that the trial court, pursuant to section 775.084, Florida Statutes (Supp....

...en to forty-five months in prison. However, after conducting a sentencing hearing on August 15, 1997, the trial court sentenced Salters as a violent career criminal to thirty-five years in prison with a thirty-year mandatory minimum term pursuant to section 775.084(c), Florida Statutes (Supp.1996)....

...violent career criminal sentencing provisions addressed in chapter 96-388. In sections 44, 45, and 46 of chapter 96-388, the Legislature addressed several statutory provisions that previously were addressed in chapter 95-182; specifically, sections 775.084, 775.0842, and 790.235, Florida Statutes. Compare Ch. 95-182, §§ 2, 5, 7, at 1667-73, with Ch. 96-388, §§ 44-46, at 2330-37. [7] In section 44 of chapter 96-388, the Legislature amended section 775.084, Florida Statutes, by (1) adding language to provide that a defendant *671 qualifies for enhanced sentencing if the offense at issue was committed "[w]hile the defendant was serving a prison sentence or other commitment imposed as a r...

...nguage; (4) revising language relating to enhanced sentencing procedures; and (5) revising language regarding gain-time eligibility. See Ch. 96-388, § 44, at 2330-36. Also in section 44 of chapter 96-388, the Legislature reenacted subsection (6) of section 775.084, which states: "The purpose of this section is to provide uniform punishment for those crimes made punishable under this section, and to this end, a reference to this section constitutes a general reference under the doctrine of incor...

...tion 790.235, Florida Statutes, which is the statutory section establishing the crime of unlawful possession of a firearm by a violent career criminal. See Ch. 96-388, § 45, at 2336. Finally, in section 46 of chapter 96-388, the Legislature amended section 775.0842, Florida Statutes, by deleting the word "or" from the statute in one instance....

...by chapter 95-182 have standing to do so if the relevant criminal offense or offenses occurred on or after October 1, 1995, and before May 24, 1997. [9] We reach this holding because other than reenacting the "general purpose" provision contained in section 775.084(6), Florida Statutes, the Legislature's passage of the relevant provisions of chapter 96-388 only amended various enhanced sentencing provisions contained in sections 775.084 and 775.0842....

...Thompson, 750 So.2d 643, 646 (Fla.1999), and we granted Salters' "Request to Take Judicial Notice" of those supplemental briefs in this case. [7] As noted in State v. Thompson, 750 So.2d 643, 647 (Fla.1999), in section 2 of chapter 95-182, the Legislature substantially amended section 775.084, Florida Statutes, by (1) creating and defining a new "violent career criminal" sentencing category; (2) adding "aggravated stalking" to the list of qualifying offenses for the habitual violent felony offender sentencing category; (3)...

...tual felony and habitual violent felony offenders; and (4) limiting the amount and types of gain-time for which violent career criminals are eligible. In section 5 of chapter 95-182, the Legislature added the phrase "or a violent career criminal" to section 775.0842, Florida Statutes, the statute establishing which persons that are subject to career criminal prosecution....

...earm by a violent career criminal. See Ch. 95-182, § 7, at 1673; see also Thompson, 750 So.2d at 647. [8] Because section 46 of chapter 96-388 did not specifically provide an effective date, see chapter 96-388, section 46, at 2337, the amendment to section 775.0842, Florida Statutes, made by that section actually became effective on July 1, 1996....

...ttery on a correctional officer, a third-degree felony. On July 24, 1990, he entered a plea of nolo contendere, which was accepted, and three days later the State filed notice of intent to seek enhanced punishment as an habitual felony offender. See § 775.084, Fla....

...The district court affirmed, but certified conflict with Inmon, wherein the court indicated pre-plea notice is required for habitualization. Ashley argues that notice is required prior to acceptance of a guilty or nolo plea under both Florida Rule of Criminal Procedure 3.172 and the habitual offender statute, section 775.084, Florida Statutes (1989)....

...[2] As a general rule, guidelines maximums fall short of statutory maximums. *489 As an alternative to guidelines sentencing, a court may impose an enhanced sentence pursuant to the habitual offender statute in those cases where the defendant meets certain requirements concerning prior convictions. See § 775.084, Fla....

...[3] In addition to authorizing longer overall terms, the statute also ensures that defendants will serve a greater portion of their sentences by eliminating the possibility of early release through parole, or accrual of basic or meritorious gain-time or provisional credits. §§ 775.084, 944.275, 944.277, Fla....

...intent to habitualize: Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant. § 775.084(3)(b), Fla....

...In the present case, although Ashley failed to object to lack of notice at trial, no contemporaneous objection is required in order to preserve a purely legal sentencing issue. Taylor v. State, 601 So.2d 540 (Fla. 1992). The requirement of rule 3.172 and section 775.084 concerning pre-plea notice of habitualization is clearly a legal matter, involving no factual determination....

...by imprisonment for a term of years not exceeding life imprisonment; (c) For a felony of the second degree, by a term of imprisonment not exceeding 15 years; (d) For a felony of the third degree, by a term of imprisonment not exceeding 5 years. [3] Section 775.084, Florida Statutes (1989), provides: (4)(a) The court ......

...shall sentence the habitual felony offender as follows: 1. In the case of a felony of the first degree, for life. 2. In the case of a felony of the second degree, for a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a term of years not exceeding 10. See also § 775.084(4)(b), Fla. Stat. (1989). [4] Habitual violent felony offenders receive mandatory minimum terms of 15, 10, and 5 years for first-, second-, and third-degree felonies, respectively. § 775.084(4)(b), Fla....

...To that end, at sentencing it presented evidence of several previous felony convictions. Defense counsel argued, however, that the evidence failed to demonstrate that his prior convictions were "separately sentenced," as the habitual offender statute, section 775.084(5), Florida Statutes (2001), requires....

...The State concedes that where probation was imposed and subsequently revoked with the imposition of a prison sentence, the date of the original imposition of probation is the date that must be used in determining whether the offense was separately sentenced under section 775.084(5)....

...esent additional evidence on remand to prove the defendant qualifies for habitual felony offender sentencing. Our decision furthers the purpose of the habitual felony offender statute. See Richardson, 915 So.2d at 88 (recognizing that the purpose of section 775.084 "is to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed") (quoting Joyner v....

...In that case, we considered the continued viability of the habitual felony offender statute in light of the subsequently enacted sentencing guidelines. We held that: (1) the guidelines applied to all felonies (except capital felonies and felonies committed before October 1983), and therefore section 775.084 (the habitual offender statute) could not operate as an alternative to guidelines sentencing; and (2) the habitual offender statute could not be used as a reason for departing from the guidelines....

...ce are found invalid on appeal, the trial court may not impose a departure sentence on remand. This line of cases is distinguishable, however. To begin with, Shull no longer applies to habitual felony offender sentencing. The legislature has amended section 775.084 to specify that a habitual felony offender sentence is not subject to the sentencing guidelines. It also amended section 775.084 to delete the requirement that the trial court determine "if it is necessary for the protection of the public to sentence the defendant to an extended term." See Ch. 88-131, § 6, at 708-09, Laws of Fla.; § 775.084(4)(h), Fla....

...(2001) ("A sentence imposed under this section is not subject to s. 921.002."). Habitual offender sentencing is now separate from both the sentencing guidelines and sentencing under the Criminal Punishment Code. See Bateman v. State, 566 So.2d 358, 359 (Fla. 4th DCA 1990) (recognizing that the amendment to section 775.084 superseded Whitehead and "a habitual offender sentence in excess of the guidelines, even *992 in the absence of stated reasons for departure, is now valid"); Owens v. State, 560 So.2d 1260, 1261 (Fla. 1st DCA 1990) (recognizing that Whitehead was decided before section 775.084 was amended so that once the defendant meets the definition of a habitual felony offender, the trial court is no longer required to provide written reasons for imposing a sentence in excess of the guidelines). In addition, unlike departure sentencing, which requires written reasons for departing from the guidelines, section 775.084 now requires written reasons only when the court finds that a habitual felony offender sentence is "not necessary for the protection of the public." § 775.084(3)(a)6., Fla....

...3.701(d)(11) (1985) (allowing departures where there are "clear and convincing reasons" to do so), the decision to sentence as a habitual felony offender must be based solely on objective, mostly documentary, evidence of the defendant's prior felony convictions. See § 775.084(1)(a)-(d), Fla....

...I dissent because I do not believe that in circumstances where the State knew or should have known what was required to be shown in order to get the defendant's sentence enhanced but failed to present evidence to the trial court, the State should have another opportunity to attempt to enhance the sentence. Section 775.084, Florida Statutes, sets out the requirements the State must prove by a preponderance of the evidence in order to prove that a defendant is a habitual felony offender (HFO) or a habitual violent felony offender (HVFO) and have the court impose an extended term of imprisonment on the defendant....

...4th DCA 2006) (resentencing ordered where State failed to provide competent evidence of date of defendant's release from prison); Riser v. State, 898 So.2d 116 (Fla. 2d DCA 2005) (resentencing ordered where State failed to show predicate offenses as enumerated in section 775.084, Florida Statutes); Cook v....

...4th DCA 2005) (resentencing ordered where State failed to show that defendant's prior convictions involved at least three different offenses); Klauer v. State, 873 So.2d 555 (Fla. 1st DCA 2004) (resentencing ordered where State failed to prove defendant's prior offenses qualified as section 775.084 enumerated offenses); Prudent v....

...3d DCA 2004) (resentencing ordered where State failed to establish that defendant was the same person who was convicted of the predicate felonies used to support the sentence); Hughes v. State, 850 So.2d 664 (Fla. 1st DCA 2003) (resentencing ordered where State failed to prove proper predicate felonies as enumerated in section 775.084, Florida Statutes); Walker v....

...1st DCA 2002) (resentencing ordered where record evidence did not support a finding that the defendant had requisite sequential convictions to qualify as HFO); Suarez v. State, 808 So.2d 1288 (Fla. 3d DCA 2002) (resentencing ordered where prior case relied on by State did not qualify as prior conviction under section 775.084, Florida Statutes); Benjamin v. State, 814 So.2d 530 (Fla. 3d DCA 2002) (resentencing ordered because HVFO sentencing should not have been imposed where none of defendant's current crimes were enumerated as qualifying offenses in section 775.084, Florida Statutes); Gordon v....

...4th DCA 2002) (resentencing ordered where State failed to provide record evidence of the date of the current felony offense); Rich v. State, 814 So.2d 1207 (Fla. 4th DCA 2002) (resentencing ordered where State failed to introduce evidence that proved defendant qualified for enhanced sentencing under section 775.084, Florida Statutes); Boyd v....

...idence the identity of the accused as the person previously convicted of the predicate crimes); Alix v. State, 799 So.2d 359 (Fla. 3d DCA 2001) (resentencing ordered where State did not prove that prior foreign offense was substantially similar to a section 775.084 qualifying offense); Wainer v....

...cate crimes); Huggins v. State, 616 So.2d 188 (Fla. 1st DCA 1993) (ordering resentencing where defendant did not qualify for HFO because present offense did not occur within five years of his release on parole from a prison sentencing as required by section 775.084, Florida Statutes); Kerney v....

...as an HFO without *1001 explicit proof of two or more felonies in this state); Rowland v. State, 583 So.2d 813 (Fla. 2d DCA 1991) (resentencing ordered where trial court failed to make specific findings of prior convictions on the record pursuant to section 775.084, Florida Statutes); Cuthbert v....

...y from any other felony conviction that is to be counted as a prior felony." (Emphasis added.) [2] Although the Second District stated the issue as whether the sentences were imposed "on the same date," see Collins, 893 So.2d at 593, for purposes of section 775.084(5), the relevant inquiry is whether the sentencing for the prior felonies occurred in the same proceeding....

...In the sentencing order, the trial judge noted that Robinson previously had been convicted in Georgia of two felonies, one of which was robbery by sudden snatching. The Georgia convictions served as a basis for the trial court's determination that Robinson was an habitual felony offender pursuant to section 775.084(1)(a), Florida Statutes (1993)....

...[6] Robinson appealed his conviction, claiming the trial court erred in qualifying and sentencing him as an habitual felony offender. Specifically, Robinson argued his conviction in Georgia for robbery by sudden snatching did not constitute a "qualified offense" under section 775.084(1)(a), because it did not contain elements analogous to robbery or any other felony in Florida. The district court compared the applicable Georgia and Florida statutes and determined that whether they were analogous for purposes of section 775.084(1)(a), depended upon whether the force or violence element required by Florida's robbery statute could be satisfied by the lesser degree of force required to establish robbery by sudden snatching....

...not similar to the elements of Florida's robbery offense, and therefore his Georgia conviction should not have been used as a predicate for habitual felony offender sentencing. For a court to sentence a defendant as an habitual felony offender under section 775.084(1)(a), Florida Statutes (1993), it must find that the defendant previously was convicted of any combination of two or more felonies in this state or two or more other qualified offenses....

...of Columbia, the United States or any possession or territory thereof, *886 or any foreign jurisdiction, that was punishable under the law of such jurisdiction at the time of its commission by the defendant by death or imprisonment exceeding 1 year. § 775.084(1)(c), Fla.Stat....

...3d DCA 1985), review denied, 491 So.2d281 (Fla.1986). [2] Florida's robbery statute is section 812.13, Florida Statutes (1993). [3] Georgia's robbery by sudden snatching offense is codified as section 16-8-40(a)(3), Georgia Code Annotated (1990). [4] Section 775.084(1)(a), Florida Statutes (1993), contains Florida's habitual felony offender provision. [5] Section 775.084(1)(b), Florida Statutes (1993), contains Florida's habitual violent felony offender provision....

...[6] Although the trial judge sentenced Robinson as an habitual felony offender, he found that Robinson was not an habitual violent felony offender, because the Georgia conviction for robbery by sudden snatching was not a crime of violence and thus did not qualify as a predicate offense allowing sentencing under section 775.084(1)(b), Florida Statutes (1993)....

...rm possession charge was a second-degree felony. After charging Thompson with these felony offenses, the State filed a notice of intent to have her sentenced as a "Habitual Felony/Habitual Violent Felony Offender/Violent Career Criminal" pursuant to section 775.084, Florida Statutes (1995). The version of section 775.084 applicable in Thompson's case had been amended by the passage of chapter 95-182, which became effective on October 1, 1995....

...§ 1, at 1665, while sections 11 and 12 provide for severability and the effective date of the chapter law. See id. §§ 11, 12 at 1675. Thus, the substantive portions of the chapter law are contained in sections 2 through 10. In section 2 of chapter 95-182, the Legislature substantially amended section 775.084, Florida Statutes....

...For example, the Legislature created and defined the "violent career criminal" sentencing category, adding that new sentencing category to the already existing habitual felony offender and habitual violent felony offender sentencing categories. See Ch. 95-182, § 2, at 1667 (amending section 775.084(1)(c), Florida Statutes). In addition, the Legislature added "aggravated stalking" to the list of qualifying offenses for the habitual violent felony offender category. See Ch. 95-182, § 2, at 1666 (adding section 775.084(1)(b)1.l., Florida Statutes). Also, the Legislature established sentencing procedures for violent career criminals and modified the sentencing procedures for habitual felony offenders and habitual violent felony offenders. See Ch. 95-182, § 2, at 1668-70 (creating section 775.084(3)(a)6.-(3)(c)3.; creating section 775.084(4)(c)). Finally, the Legislature limited the amount and types of gain-time for which violent career criminals would be eligible. See Ch. 95-182, § 2, at 1670 (creating section 775.084(4)(j)2., Florida Statutes)....

...In sections 3 through 6 of chapter 95-182, the Legislature amended several sections of the Florida Statutes relating to procedural matters involving habitual felony offenders, habitual violent felony offenders, and violent career criminals. See Ch. 95-182, §§ 3-6, at 1670-73 (amending sections 775.08401, 775.0841, 775.0842, and 775.0843, Florida Statutes, respectively)....

...In so holding, we approve the Second District's decision in Thompson and disapprove the Third District's decision in Higgs. We realize that our decision here will require the resentencing of a number of persons who were sentenced as violent career criminals under section 775.084, Florida Statutes, as amended by chapter 95-182....

...As to Count 3 I sentence you to 40 years Florida State Prison with a 30 year minimum mandatory. All sentences to be served concurrently with each other and pursuant to the violent career criminal statute pursuant to my calculations. Record on Appeal at 176; accord § 775.084(4)(c), Fla....

...ncurrent sentences of ten years on each of the fifteen third-degree felonies. See id. Because the trial court sentenced Bover as a habitual offender, the statutory maximum for the offense was ten years rather than five years. See §§ 775.082(3)(d), 775.084(4)(a)3, Fla....

...tual offender statute. See id. at 1189. Specifically, Bover argued that because all the predicate offenses used to adjudicate him as a habitual offender had been imposed on June 30, 1992, they did not satisfy the sequential conviction requirement of section 775.084(5), Florida Statutes (1993)....

...This section provides: In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony. § 775.084(5)....

...State, 596 So.2d 73 (Fla. 2d DCA 1992) (en banc). Judge Altenbernd, writing for the Second District in Judge, concluded that an improper habitual offender sentence renders a sentence illegal "only if: 1) the terms or conditions of the sentence exceed those authorized by section 775.084 for the adjudicated offense, or 2) a prior offense essential to categorize the defendant as a habitual offender does not actually exist." 596 So.2d at 78....

...tory scheme results in an illegal sentence. Id. In this case, Bover claims that the predicate felonies did not satisfy the sequential conviction requirement necessary for the imposition of a habitual offender sentence. The habitual offender statute, section 775.084(5), specifically provides that the court must have imposed sentence for the two prior convictions separately from each other....

...[5] As to whether the predicate felonies in the record in this case satisfy the sequential conviction requirement, the State conceded before the Third District that the prior convictions used to habitualize Bover did not satisfy the sequential conviction requirement pursuant to section 775.084(5)....

...In White, the defendant filed a rule 3.800(a) motion to correct an illegal sentence, claiming that he was improperly sentenced as a habitual offender because the predicate offense, a manslaughter conviction for a death caused by driving while intoxicated, did not constitute a violent felony offense under section 775.084(1)(b)(1), Florida Statutes (1989)....

....800(a) should be revised. [6] The Third District, in an order dated March 3, 1999, directed counsel for both Bover and the State to address several questions, including "Whether the prior convictions used to habitualize appellant fail to satisfy subsection 775.084(5), Florida Statutes (1993)." The State, in a supplemental memorandum, replied that the convictions did not satisfy section 775.084....

...of robbery. Before trial, the State served King with notice of its intent to seek habitual felony offender sentencing. King was convicted as charged by a jury. Id. at 183. At sentencing, the State reiterated its request that King be sentenced under section 775.084, Florida Statutes (1989), Florida's habitual felony offender statute, and urged the trial court to sentence King to the maximum sentence allowable as an habitual felon....

...[4] Sentencing under the habitual felon statute is permissive, not mandatory, Burdick v. State, 594 So.2d 267 (Fla.1992), and involves a two-step determination. First, the *1139 sentencing judge must determine whether a defendant qualifies as an habitual offender. § 775.084(3), Fla....

...[5] This determination is ministerial rather than discretionary. King v. State, 597 So.2d 309, 313 (Fla. 2d DCA), review denied, 602 So.2d 942 (Fla. 1992). [6] Second, the judge must decide whether the defendant will be sentenced as an habitual felony offender. Id.; § 775.084(4)(c), Fla....

...However, where an habitual offender sentence is not imposed, the judge "must still adhere to the sentencing guidelines." Rinkins, 646 So.2d at 729; accord Geohagen, 639 So.2d at 611. As the Second District Court of Appeal explained in King, [s]hould the trial judge decide, pursuant to subsection 775.084(4)(c), not to sentence a person as an habitual felony offender, even though that person qualifies as an habitual offender, any sentence then imposed must comport with sentencing guidelines or departure rules. 597 So.2d at 315. [8] It is the decision to not sentence the defendant as an habitual felony offender pursuant to section 775.084 that triggers the sentencing guidelines procedures. Id. at 316; see also § 775.084(4)(e), Fla. Stat. (1989) ("A sentence imposed under this section shall not be subject to the provisions of s. 921.001."). The substantive offenses of which King was convicted, burglary and robbery, are punishable "as provided in s. 775.082, s. 775.083, or s. 775.084." §§ 810.02, 812.13, Fla....

...673, 679-80, 74 L.Ed.2d 535 (1983) (stating that where legislature specifically authorizes cumulative punishment under two statutes for the same conduct prosecutor may seek and court may impose cumulative punishment in single trial). However, nothing in section 775.084 authorizes that sentencing be imposed under that statute in addition to the punishment described in section 775.082. Moreover, section 775.084 specifically provides that "[i]f the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section." § 775.084(4)(c), Fla....

...Having served the imprisonment portion of his sentence under the guidelines, King cannot be sentenced as an habitual offender upon revocation of probation. Hybrid split sentences of incarceration without habitual offender status followed by probation as an habitual offender are not authorized by section 775.084 and are in fact inconsistent with the plain language of the statute....

..." § 948.06(1), Fla. Stat. (1989). [4] King also argues that his sentence violates the constitutional guarantee against double jeopardy. Because we conclude that King's sentence is otherwise improper, we do not address the double jeopardy issue. [5] Section 775.084(3), Florida Statutes (1989), provides: (3) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender....

...(e) For the purpose of identification of a habitual felony offender or a habitual violent felony offender, the court shall fingerprint the defendant pursuant to s. 921.241. [6] The cited case involved a different individual (Aaron Calvin King) than the petitioner in the instant case (Marvin Lee King). [7] Section 775.084(4)(c), Florida Statutes (1989), provides: (c) If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section....

...State, 597 So.2d 823 (Fla. 3d DCA 1992), in which the district court certified its decision as being in conflict with the decisions of other district courts of appeal on the issue of whether life felonies are subject to enhancement under the Habitual Felony Offender Act, section 775.084, Florida Statutes *436 (1989)....

...87, Florida Statutes (1989); and another offense which is not relevant to the issue at hand. Brooks was found to be a habitual violent felony offender and was sentenced to life in prison without eligibility for release for fifteen years, pursuant to section 775.084(4)(b)....

...4th DCA 1991) (same) review dismissed, 593 So.2d 1049 (Fla. 1992); Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990) (same). The district court rejected the petitioners' construction of the Act. The court reasoned that such a construction would defeat the legislative intent, as expressed in sections 775.0841 and 775.0842, Florida Statutes (1989), to provide enhanced penalties for career criminals in order to deter crime....

...o enhanced punishment but not to do the same to those who commit the most serious of offenses. Id. at 826. The court also found it "significant" that the statutes under which Lamont and Brooks were convicted specifically provide for sentencing under section 775.084....

...We agree with the district court below that it does not appear rational that the habitual offender statute subjects career criminals who commit less serious felony offenses to enhanced punishment but does not do the same for those who commit the most serious offenses. However, as recognized by the dissent below, section 775.084 by its plain terms contains no extended term of imprisonment for life felony convictions....

...tion (1) of the statute. Subsection (4)(e) of the statute [5] does not provide for extended terms of imprisonment. That provision merely provides that the sentencing guidelines, parole, and basic gain time are inapplicable to sentences imposed under section 775.084; which, as noted above, are provided exclusively in subsections (4)(a) and (4)(b)....

...most favorable to the accused. Id. A review of the history of the relevant statutes supports the petitioners' construction of the Act. As recently explained by the First District Court of Appeal, the Third District Court of Appeal's construction of section 775.084 fails when the history of the relevant statutes is examined. Since the advent of life felonies in chapter 72-724, Laws of Florida, no amendment to the recidivist statute has referenced life felonies, and prior to enactment of section 6, chapter 88-131, Laws of Florida, the penalty provisions of section 775.084 did not include subsection (4)(e). Yet, in chapter 75-298, Laws of Florida, the legislature began directing punishment as provided in section 775.084 for life felonies. It appears that this omnibus crime bill made universal reference to section 775.084 for all felonies other than capital felonies, without consideration of the specific contents of the recidivist statute. The Lamont court having conceded that sections 775.084(4)(a) and 775.084(4)(b) do not apply to life felonies, we fail to see the logic of the legislative intent it ascribes to the 1975 enactment. Lee v. State, 606 So.2d 1222 (Fla. 1st DCA 1992). Both the plain language and the history of the relevant statutes lead us to hold that one convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084....

...n of the habitual offender statute to Lamont's armed burglary conviction. Burdick. We also approve that portion vacating the fifteen-year mandatory minimum sentences for the life felonies. However, we quash that portion of the decision below finding section 775.084(4)(e) applicable to the petitioners' life-felony convictions and remand for further proceedings consistent with this opinion....

...I would approve the decision under review in full and therefore dissent to the majority opinion to the extent that it disagrees with it. NOTES [1] Article V, section 3(b)(4), Florida Constitution. [2] The sentencing order incorrectly ascribes authority for the fifteen-year mandatory minimum sentences to section 775.084(4)(a) and section 775.082(1), Florida Statutes (1989), neither of which are applicable. However, it appears Lamont was found to be a habitual violent felony offender, under section 775.084(4)(b), Florida Statutes (1989), during the sentencing hearing. [3] For example, one who commits sexual battery as defined under section 794.011(3), Florida Statutes (1989), "is guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." One who commits second-degree murder as defined under section 782.04(2), Florida Statutes (1989), is guilty of "a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084." [4] Section 775.084(4)(a), (b), Florida Statutes (1989), provide: (4)(a) The court, in conformity with the procedure established in subsection (3), shall sentence the habitual felony offender as follows: 1....

...In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. [5] Section 775.084(4)(e), Florida Statutes (1989), provides: A sentence imposed under this section shall not be subject to the provisions of s....

...Washington had been previously convicted of burglary, burglary of an occupied dwelling, burglary of a dwelling, petit theft, burglary of a conveyance, and grand theft in the third degree. These crimes are not listed in the habitual violent felony offender statute. See § 775.084(1)(b)1., Fla. Stat. (1989). His sexual battery conviction is a life felony and pursuant to Lamont v. State, 610 So.2d 435, 438 (Fla. 1992), "one convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084." We agree with Washington's final issue, in which he asserts that the trial court improperly entered two written judgments, one dated July 16, 1992, (the day he was found guilty) and the other dated September 4, 1992, (the date of the sentencing order)....

...FACTS AND PROCEDURAL HISTORY Tyrone Jordan was convicted of one count of burglary with an assault or battery, a first-degree felony, and one count of strong-arm robbery, a second-degree felony. Jordan, 83 So.3d at 911 . The sentencing judge found him to be a habitual violent felony offender (HVFO) under section 775.084(4), Florida Statutes (1993), and sentenced him to concurrent life sentences with fifteen-year mandatory minimums for each conviction....

...Without holding a hearing, the trial court granted *337 the motion, vacated the sentence for the robbery count, and resentenced Jordan to the maximum under the statute — thirty years — with a ten-year mandatory minimum, still running concurrently. Id.; § 775.084(4)(b)....

...Therefore, a resentencing at which the trial judge has judicial discretion is not a ministerial act. The instant resentencing was not ministerial because the trial court had discretion as to Jordan’s new sentence. At the initial sentencing, Jordan was deemed a habitual violent felony offender under section 775.084(4). This section dictates that the trial court sentence such an offender convicted of a second-degree felony to “a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years.” § 775.084(4)(b)2....

...State, 638 So.2d 140, 141 (Fla. 4th DCA 1994); Suarez v. State, 616 So.2d 1067, 1068 (Fla. 3d DCA 1993). II Defendant asserted, inter alia, that the plea should be set aside because there was no on-the-record waiver of the right to a habitual offender hearing under section 775.084, Florida Statutes (1989). [2] The trial court agreed. The court's written order states that the defendant "could not enter a plea and be sentenced as an Habitual Offender pursuant to Florida Statute 775.084 without a [habitual offender] hearing or without a specific waiver of hearing recorded in the plea colloquy... ." We respectfully disagree. The principal purpose of a hearing under the habitual offender statute is to make findings establishing that the defendant is a habitual offender. § 775.084(3)(d), Fla....

...[2] The 1989 version of the statute was in force at the time of the defendant's offenses in 1990. [3] Another purpose of a habitual offender hearing is to allow the trial court to decide "[i]f ... imposition of sentence ... is not necessary for the protection of the public." § 775.084(4)(c), Fla....

...3.172(c)(viii) (as amended 1989). [11] The remainder of Ashley applies pre-existing law. Ashley held that written notice of habitualization must be given prior to acceptance of the plea. Id. at 490. This was required by the habitual offender statute itself. Id.; see § 775.084(3)(b), Fla....

...EN BANC CAMPBELL, Judge. Appellant, Aaron Calvin King, appeals the sentences imposed upon him after revocation of his community control. Essentially, appellant challenges only the ten-year prison sentence imposed pursuant to the habitual felony offender statute, section 775.084, Florida Statutes (1989), for the third degree felony offense of burglary of a structure, subsections 810.02(1) and (3), Florida Statutes (1989)....

...uent ten-year prison sentence imposed upon violation of community control was an upward departure from the guidelines without adequate reasons. *313 We reject both of appellant's arguments. In doing so, we must analyze the habitual offender statute, section 775.084, much more closely and broadly than we have before been called upon to do and reassess our holdings in previous decisions of this court....

...4th DCA 1989), review dismissed, 560 So.2d 235 (Fla. 1990); Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), quashed on other grounds, 476 So.2d 191 (Fla. 1985); Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979). We conclude now, however, that recent amendments to section 775.084, particularly those effected by chapter 88-131, section 6, Laws of Florida, recent supreme court decisions, notably Burdick v. State, 594 So.2d 267 (Fla. 1992) and Williams v. State, 581 So.2d 144 (Fla. 1991), and our closer examination of section 775.084, make clear a trial judge's discretion to exercise leniency even after determining a defendant to be an habitual offender. The implementation of the habitual offender sentencing process has always been a two step procedure. The first step is that prescribed in subsection 775.084(3), whereby the sentencing judge determines whether a defendant qualifies as an habitual felony offender or an habitual violent felony offender. The second step is that prescribed in subsection 775.084(4) and sets forth the sentence to be imposed after a person is determined to be an habitual felony offender. We conclude that the 1988 amendment to subsection 775.084(3) changed that determination of habitual offender status from a discretionary determination to a ministerial determination. Significant to our conclusion is the manner in which chapter 88-131, section 6, Laws of Florida, effected amendments to subsections (3) and (4) of section 775.084....

...his section is necessary for the protection of the public from further criminal activity by the defendant, shall sentence the habitual felony offender as follows: The legislative scheme in regard to habitual felony offenders as now set forth *314 in section 775.084 clearly contemplates that once a trial judge becomes aware of the fact that a defendant qualifies for habitual offender status, after proper notice to the defendant, the trial judge shall simply decide by a preponderance of the eviden...

...The trial judge shall then make the determination whether or not the defendant is an habitual felony offender or an habitual violent felony offender. Then, without the necessity of any further findings, the court, in the second step, may sentence the defendant as provided in subsections 775.084(4)(a) or (b)....

...The trial judge, however, does retain the discretion to exercise leniency and to sentence a defendant found to be an habitual felony offender or an habitual violent felony offender to a sentence less severe than the maximum sentence that is permitted by subsections 775.084(4)(a) or (b). See Henry v. State, 581 So.2d 928 (Fla. 3d DCA 1991). This conclusion is supported by two distinct subsections of section 775.084. First, the very definition of "habitual felony offender" as set forth in subsection 775.084(1)(a), states: "`Habitual felony offender' means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that... ." (Emphasis added). Second, subsection 775.084(4)(c) provides: (c) If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is a habitual felony offender or a habitual violent felony offender, the court shall make that determination as provided in subsection (3). The first sentence of subsection 775.084(4)(c) clearly provides that a trial judge, having found a defendant to be an habitual felony offender, may elect not to sentence the defendant as an habitual felony offender if the sentencing judge decides that a sentence as an habitual felony offender or an habitual violent felony offender is not necessary for the protection of the public. We find it significant that the legislature in enacting subsection 775.084(4)(c) used the phrase: "If the court decides ......

...se such a sentence is now required. We must presume the legislature had a purpose in choosing such contrasting terms of art to describe the trial judge's use or non-use of the habitual offender statute as a sentencing tool. The second sentence of subsection 775.084(4)(c) reinforces our conclusion that the determination of habitual offender status is a ministerial act to be performed by the trial judge whenever it becomes apparent that the defendant qualifies for habitual offender status....

...be identified and "determined" whether or not they are punished as habitual felony offenders. We, therefore, conclude that a trial judge retains the discretion to exercise leniency in regard to habitual felony offenders in two ways. First, using subsection 775.084(4)(c), the trial judge may simply *315 decide not to sentence the defendant as an habitual felony offender. Second, having determined to sentence the defendant as an habitual felony offender, the trial judge has the discretion to sentence an habitual felony offender to any term of years up to the maximum sentence provided in subsections 775.084(4)(a)(1), (2) and (3), or as an habitual violent felony offender to any term of years not less than the minimum mandatory nor more than the maximum sentence provided in subsections 775.084(4)(b)(1), (2) and (3)....

...We agree with our colleagues of the Third District Court of Appeal in their well-reasoned and carefully analyzed opinion in Henry, that State v. Brown, 530 So.2d 51 (Fla. 1988), remains viable in interpreting the use of the term "shall," as it applies to the sentencing procedure set forth in subsections 775.084(4)(a)(1) and (b)(1), to be permissive rather than mandatory....

...ovided in the statute may be imposed unless the trial judge decides that a sentence as an habitual felony offender is not necessary for the protection of the public. Another significant amendment accomplished by chapter 88-131 was the addition of subsection 775.084(4)(e) to the statute which effectively supersedes the holding in Brown as to the effect of the sentencing guidelines on habitual offender sentences. Subsection 775.084(4)(e) provides as follows: (e) A sentence imposed under this section shall not be subject to the provisions of s....

...rely the determination that a person is an habitual felony offender that makes inapplicable the sentencing guidelines procedures established by section 921.001. It is the decision to sentence the defendant as an habitual felony offender, pursuant to section 775.084, after the determination of habitual offender status, that makes the sentencing guidelines (section 921.001) inapplicable to such a sentence. Should the trial judge decide, pursuant to subsection 775.084(4)(c), not to sentence a person as an habitual felony offender, even though that person qualifies as an habitual offender, any sentence then imposed must comport with sentencing guidelines or departure rules and *316 any failure to do so would be the proper subject of appeal by the state as well as the defendant....

...Fla.R.App.P. 9.140(c)(1)(J). However, any such appeal must be taken at the time the original sentence is imposed and within the time limits required by Rule 9.140(b)(2) and (c)(2). If, as in this case, a trial judge exercises leniency by not imposing a section 775.084 sentence, but instead imposes a guidelines downward departure sentence of probation or community control and no appeal is then pursued, that downward departure may not be later attacked when a subsequent sentence as an habitual felony offender is imposed, pursuant to section 775.084, upon a revocation of probation or community control....

...ve legislative intent to have been, as well as we are able to discern it, from the various legislative enactments. In summary, we find that persons found to be habitual felony offenders may be sentenced as habitual felony offenders under subsections 775.084(4)(a)(1), (2) and (3), for felonies of the first, second and third degree, respectively, for life or any term of years not to exceed the maximum sentence prescribed for each degree of offense. Habitual violent felony offenders are, under subsections 775.084(4)(b)(1), (2) and (3), subject to the additional enhancement of minimum mandatory sentences of fifteen, ten and five years, respectively. Under this scheme then, an habitual felony offender may be sentenced as an habitual felony offender to any term of years up to the maximum enhancement allowed by reason of subsections 775.084(4)(a)(1), (2) and (3). A person being sentenced as an habitual violent felony offender under subsections 775.084(4)(b)(1), (2) or (3) must be sentenced to a minimum mandatory sentence of fifteen, ten or five years, respectively, with the total sentence being at least fifteen but no more than life for a first degree felony, at least ten but no more than thirty for a second degree felony, and at least five but no more than ten for a third degree felony. Any lesser sentence for an habitual violent felony offender would require a subsection 775.084(4)(c) decision by the court and activation of sentencing guidelines procedures. A decision by the court pursuant to subsection 775.084(4)(c) that sentencing as an habitual felony offender or an habitual violent felony offender is not necessary to protect the public, thereby activating sentencing guidelines procedures, is required only when the trial judge desires to sentence the defendant below the minimum sentences provided in section 775.084 or, for some other reason, desires not to sentence the defendant as an habitual felony offender and to activate guidelines requirements and procedures. Needless to say, since any sentence composed only of community control or probation imposed after a determination of habitualization is not an enhanced sentence under the statute, it would require a subsection 775.084(4)(c) decision and an activation of guidelines procedures. It should be observed that any sentence as an habitual felony offender or an habitual violent felony offender for a term of years or for life is further enhanced because such a sentence imposed under section 775.084 is not subject to chapter 947, nor is the defendant eligible for regular gain-time. See § 775.084(4)(e)....

...There are enhancement justifications, therefore, for utilizing habitualization in sentencing a defendant, even though the sentence actually imposed is the same or even less in term of years as would have been imposed without habitualization. In concluding our analysis of the sentencing alternatives possible under section 775.084, we must reveal a concern raised by our interpretation of the statute. We have followed the precedent we have *317 determined to be most applicable and yet we perceive that there is within the legislative plan adopted in section 775.084 something of an anomaly that may be inadvertent. Section 775.084 does not require that it only be utilized when a trial judge desires to enhance a sentence so as to be more severe than a sentence within the applicable guidelines would be....

...We, therefore, have concluded from a literal reading of the statute that a trial judge may sentence a qualifying defendant as an habitual felony offender to a sentence either above or below the recommended guidelines sentence and without regard to any guidelines limitations. Subsection 775.084(4)(e) simply provides that a sentence imposed under section 775.084 shall not be subject to the provisions of section 921.001....

...abitualization as a method to sentence upward or downward from a recommended guidelines sentence without any right of appeal by the state or the defendant in regard to the length of or the reasons for the sentence term. It does seem clear that under section 775.084, absent a decision that sentencing as an habitual felony offender is not necessary, any sentence of such an habitualized defendant must be a prison sentence for a term of years not to exceed the maximum sentences allowable. In order to properly sentence a defendant found to be an habitual felony offender to probation or community control, the trial judge would first have to make a decision under subsection 775.084(4)(c) that a sentence as an habitual felony offender was not necessary....

...Because no appeal was taken from that original habitualization and the sentence of community control, those issues and any procedural errors related thereto were thereby waived. We, therefore, find that the trial judge committed no error by imposing an enhanced sentence pursuant to section 775.084 upon revocation of defendant's community control based solely upon the defendant's habitualization at the time community control was originally imposed....

...c importance the following additional question: IF THE ANSWER TO THE QUESTION CERTIFIED ABOVE IS IN THE AFFIRMATIVE, MAY THE HABITUAL OFFENDER, UPON VIOLATION OF PROBATION OR COMMUNITY CONTROL, BE SENTENCED TO AN EXTENDED TERM OF INCARCERATION UNDER SECTION 775.084(4)(a) OR (b)?

...Gen., Daytona Beach, for appellee. COBB, Judge. The issue in this case is the constitutionality of Florida's "Habitual Felony Offender" act, which was substantially rewritten by the 1988 Florida Legislature. See Ch. 88-131, § 6, Laws of Fla. eff. Oct. 1, 1988, now codified as § 775.084. The act provides: 775.084....

...month as provided for in s. 944.275(4)(b). In the instant case, King was charged and convicted of a felony offense which occurred on November 2, 1988. Prior to trial, the state filed a notice of its intention to seek enhanced punishment pursuant to section 775.084....

...abitual offender and sentenced him to ten years in prison. On appeal, King challenges the constitutionality of the present statute on grounds of equal protection and due process (arbitrariness and vagueness). As to equal protection, King claims that section 775.084 creates inequitable classes because it only applies to those whose prior offenses were committed in the State of Florida (under-inclusive)....

...Specifically, the defendant maintains that the habitual offender statute sets up no method to determine who should be "habitualized." Nor does the statute explain who is to decide whether a person should come under its classification — the state attorney or the court. Determining who falls within the purview of section 775.084 is clearly established by the statute. The clear intent of the legislature is that only when the court decides the statute is not necessary for the protection of the public can section 775.084 be disregarded....

...Additionally, the defendant suggests that the habitual offender statute allows for the possibility of sentencing below the sentencing guideline recommended range without written reasons. This argument is unavailing because it is the converse of the argument that section 775.084 allows for the possibility of sentencing above the sentencing guideline recommended range without written reasons. Both arguments have been eliminated through legislative amendment. See § 775.084(4)(e), Fla....

...Because of our resolution of this issue, we need not consider whether sentencing a defendant under more than one category would violate double jeopardy protections. I. THE STATUTE The defendant, Michael Ray Clines, was sentenced under Florida's recidivist sentencing statute. That statute, section 775.084, Florida Statutes (2002), establishes four categories of recidivists whose sentences may be enhanced. They are, in order of increasing punishment, habitual felony offenders, habitual violent felony offenders, three-time violent felony offenders, and violent career criminals. § 775.084(1), Fla....

...e under supervision as the result of one of the prior convictions that qualified him for this category, or (b) within five years of his last conviction, prison release, or release from supervision attributable to one of those qualifying convictions. § 775.084(1)(a), Fla. Stat. (2002). [1] To be sentenced as a habitual violent felony offender, a defendant must have been convicted of one prior enumerated felony and must have committed his current felony within the above time frame. § 775.084(1)(b), Fla....

...Stat. (2002). To be sentenced as a three-time violent felony offender, a defendant must have been convicted twice as an adult of certain violent felonies (listed in the statute) and must have committed another such offense within the above time frame. § 775.084(1)(c), Fla....

...Finally, to be sentenced as a violent career criminal, a defendant must have been previously incarcerated in state or federal prison, must have been convicted three times as an adult of certain violent felonies (listed in the statute), and must have committed another such offense within the above time frame. § 775.084(1)(d), Fla....

...Stat. (2002). Recidivists within these categories are subject to enhanced punishment, which generally increases with each category. The two habitual offender categories are permissive; such offenders "may" be sentenced more harshly than otherwise. § 775.084(4)(a)-(b), Fla. Stat. (2002). The other two categories are mandatory. Three-time violent felony offenders "must" be sentenced to mandatory minimum terms. § 775.084(4)(c), Fla. Stat. (2002). Violent career criminals "shall" be sentenced to lengthy minimum terms and may also be sentenced to even longer maximum terms, with no eligibility for discretionary early release. § 775.084(4)(d), (4)(k)2., Fla....

...-------------- Violent Up to 15 years, Up to 40 years, Life imprisonment; Life Career with a mandatory with a mandatory no imprisonment; Criminals minimum minimum discretionary no discretionary of 10 years of 30 years early release early release See § 775.084(4)(a)-(k), Fla....

...elonies, and committed another such offense within the specified time frame) will always be a habitual felony offender (because he will have two prior felony convictions and will have committed his current felony within the same time frame). Compare § 775.084(1)(a), Fla. Stat. (2002), with § 775.084(1)(d), Fla....

...PROCEEDINGS BELOW Clines was charged with resisting arrest with violence, grand theft, and two counts of battery on a law enforcement officer. The State filed notices of its intent to seek both habitual felony offender sentencing and violent career criminal sentencing under section 775.084....

...sentencing statute. The First District affirmed, concluding that dual designation "violates neither double jeopardy protections nor legislative intent." Clines, 881 *555 So.2d at 722. According to the First District, "the entire statutory scheme of section 775.084 readily contemplates, in the case of a single criminal charge, a sentence under the habitual felony offender provision, with the mandatory minimum term provisions provided for by the violent career criminal designation." Id. at 724. The First District certified conflict, however, with the Second District's decision in Works, 814 So.2d at 1199, and the Fourth District's decision in Oberst, 796 So.2d at 1265, both of which interpreted section 775.084 to prohibit the sentencing of a defendant under more than one recidivist category. Clines, 881 So.2d at 724. Clines now asks us to resolve the conflict. [3] III. ANALYSIS Clines argues that the trial court violated section 775.084 by sentencing him as both a violent career criminal and a habitual felony offender....

...The disputed provision is subsection (4)(f), which states: At any time when it appears to the court that the defendant is eligible for sentencing under this [recidivist sentencing] section, the court shall make that determination as provided in paragraph (3)(a), paragraph (3)(b), or paragraph (3)(c). § 775.084(4)(f), Fla. Stat. (2002) (emphasis added). The cross-referenced paragraphs cover different recidivist categories. Each provides that "[i]n a separate proceeding, the court shall determine" whether the defendant qualifies for designation within that category. § 775.084(3)(a), (3)(b), (3)(c), Fla....

...tatutes is de novo."). In the analysis that follows, we (A) analyze the statute's plain meaning, (B) analyze the broader statutory structure, and finally (C) explain why the rule of lenity dictates that a defendant may be sentenced under only one of section 775.084's recidivist categories....

...us intent to punish career criminals with the most severe sanction possible. The State emphasizes two provisions: one expressly stating that the Legislature's intent in enacting these provisions was "to incarcerate [recidivists] for extended terms," § 775.0841, Fla. Stat. (2002); and another demanding that "[a]ll reasonable prosecutorial efforts shall be made to persuade the court to impose the most severe sanction authorized upon a person convicted after prosecution as a career criminal." § 775.0843(2)(d), Fla....

...lies. The Legislature has ordered prosecutors to pursue "the most severe sanction authorized" — not the most severe sanction possible, as the State suggests. Whether a sentence imposed under multiple recidivist categories is, in fact, authorized by section 775.084 is unclear from these general statements of legislative intent....

...)(a), paragraph (3)(b), or paragraph (3)(c)." Those cross-referenced paragraphs provide, respectively, that "[i]n a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender," § 775.084(3)(a), Fla. Stat. (2002); that "[i]n a separate proceeding, the court shall determine if the defendant is a three-time violent felony offender," § 775.084(3)(b), Fla. Stat. (2002); and that "[i]n a separate proceeding, the court shall determine whether the defendant is a violent career criminal." § 775.084(3)(c), Fla....

...ich recidivist categories apply, it can only sentence a defendant under a single category. When a defendant qualifies for more than one category, the Legislature has expressed its desire for "the court to impose the most severe sanction authorized," § 775.0843(2)(d), Fla. Stat. (2002), which in turn promotes the Legislature's goal of "uniform punishment" of similarly situated defendants. § 775.084(6), Fla....

...A trial court may depart from the sentence required for a habitual felony offender, habitual violent felony offender, or violent career criminal, provided that it explains in writing why "such sentence is not necessary for the protection of the public." § 775.084(3)(a)6., (3)(c)5., (4)(e), Fla....

...ent felony offender category and the violent career criminal category — are phrased in mandatory language. The statute provides that "the court . . . must sentence the three-time violent felony offender to a mandatory minimum term of imprisonment," § 775.084(4)(c)1., Fla. Stat. (2002) (emphasis added); and that "the court . . . shall sentence the violent career criminal" to certain mandatory minimum terms. § 775.084(4)(d), Fla. Stat. (2002) (emphasis added). In contrast, the other two categories are permissive. § 775.084(4)(a)-(b), Fla....

...unishment required by the three-time violent felony offender category. For example, for third-degree felonies, violent career criminals must be sentenced to "a term of years not exceeding 15, with a mandatory minimum term of 10 years' imprisonment," § 775.084(4)(d)3., Fla. Stat. (2002), whereas three-time violent felony offenders need only be sentenced to a lesser mandatory minimum of five years in prison. § 775.084(4)(c)1.d., Fla. Stat. (2002). For second-degree felonies, violent career criminals must be sentenced to "a term of years not exceeding 40, with a mandatory minimum term of 30 years' imprisonment," § 775.084(4)(d)2., Fla. Stat. (2002), whereas three-time violent felony offenders need only be sentenced to a lesser mandatory minimum of 15 years. § 775.084(4)(c)1.c., Fla. Stat. (2002). For first-degree felonies, violent career criminals must be sentenced "for life" without eligibility for discretionary early release, § 775.084(4)(d)1., 4(k), Fla. Stat. (2002), whereas three-time violent felony offenders need only be sentenced to a mandatory minimum of 30 years. § 775.084(4)(c)1.b., Fla. Stat. (2002). Finally, for life felonies, both violent career criminals and three-time violent felony offenders must be sentenced to life imprisonment without eligibility for early release. § 775.084(4)(d)1., (c)(1)a., (k)2., Fla....

...they clearly indicate that the Legislature intended for the violent career criminal category and the habitual felony offender category to be applied in combination. The First District expressed this view as follows: "[T]he entire statutory scheme of section 775.084 readily contemplates, in the case of a single criminal charge, a sentence under the habitual felony offender provision, with the mandatory minimum term provisions provided for by the violent career criminal designation.'" Clines, 881 So.2d at 724....

...We believe that the recidivist categories are designed to be hierarchical, not complementary. As we mentioned earlier, anyone whose pattern of recidivism meets the stringent requirements for designation as a violent career criminal will also qualify for designation as a habitual felony offender. Compare § 775.084(1)(d), Fla. Stat. (2002), with § 775.084(1)(a), Fla....

...The punishments required for violent career *560 criminals are always as harsh as, or harsher than, the punishments permitted under other categories. In fact, the mandatory minimum prison term for a violent career criminal in Clines's position is as long as the maximum prison term for a habitual felony offender. Compare § 775.084(4)(d), Fla. Stat. (2002), with § 775.084(4)(a), Fla. Stat. (2002). We doubt the Legislature intended a trial court to apply both categories when one encompasses the other. C. Rule of Lenity Based on the above analysis, we conclude that section 775.084 is ambiguous about whether multiple recidivist categories may be applied to a single criminal sentence. Although the Legislature certainly intended for recidivists to be sentenced "for extended terms," § 775.0841, Fla....

...accused." § 775.021(1), Fla. Stat. (2002). We have explained that the rule "is applicable to sentencing provisions" if they "create ambiguity or generate differing reasonable constructions." Nettles v. State, 850 So.2d 487, 494 (Fla.2003). Because section 775.084 generates differing reasonable constructions, we endorse the construction that favors the defendant and hold that only one recidivist category in section 775.084 may be applied to any given criminal sentence. IV. CONCLUSION We hold that subsection 775.084 permits the application of only one recidivist category to the defendant's sentence....

...cing in light of our ruling. We note that the original sentence given to Clines for resisting arrest—a ten-year term of imprisonment with a ten-year mandatory minimum—would be authorized on remand by the violent career criminal category alone. See § 775.084(4)(d)3., Fla....

...PARIENTE, C.J., and ANSTEAD, LEWIS, QUINCE and BELL, JJ., concur. WELLS, J., concurs specially with an opinion. WELLS, J., concurring specially. I find there to be a very close question here as to whether the rule of lenity should apply. I believe that section 775.084(4)(f), Florida Statutes, can be reasonably read unambiguously to mean that the Court shall make its determination in accord with any of the three paragraphs that apply....

...4th DCA 2001), involved a direct appeal. Therefore, the issue here is not whether there can be relief pursuant to Florida Rule of Criminal Procedure 3.800(a). That issue is not decided in this case. NOTES [1] For a conviction to be counted toward any of the categories in section 775.084, it must not have been pardoned or set aside. See § 775.084(1)(a)-(d), Fla. Stat. (2002). Also, the conviction must have been "sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony." § 775.084(5), Fla....

...The holding in Grant was a straightforward interpretation of section 775.082(8)(c), Florida Statutes (1997), which provided that "[n]othing in this [PRR sentencing] subsection shall prevent a court from imposing a greater sentence of incarceration . . . pursuant to s. 775.084 [the recidivist sentencing statute], or any other provision of law." This case does not involve section 775.082(8)(c). [5] We recognize that violent career criminals are eligible for gain-time, whereas three-time violent felony offenders are not. § 775.084(4)(k)1., Fla....

...2d at 326-27. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative and quash the decision of the district court. Kenneth Rucker was convicted of one count each of burglary of a conveyance and criminal mischief. Pursuant to section 775.084, Florida Statutes (1989), the State sought sentencing as an habitual felony offender and introduced certified copies of Rucker's prior felony convictions, which Rucker conceded....

...1980), did not change this requirement because the trial court in that case made the appropriate findings. The legislature enacted the habitual offender act "to allow enhanced penalties for those defendants who meet objective guidelines indicating recidivism." Eutsey, 383 So.2d at 223. Section 775.084 sets out the definition for habitual offenders: 775.084 Habitual felony offenders and habitual violent felony offenders; extended terms; definitions; procedure; penalties....

...... . The procedure shall be as follows: ... . (d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings. § 775.084, Fla....

...In Eutsey v. State, 383 So.2d 219 (Fla. 1980), we ruled that the burden is on the defendant to assert a pardon or set aside as an affirmative defense. Although this ruling does not relieve a court of its obligation to make the findings required by section 775.084, we conclude that where the State has introduced unrebutted evidence — such as certified copies — of the defendant's prior convictions, a court may infer that there has been no pardon or set aside. In such a case, a court's failure to make these ministerial findings is subject to harmless error analysis. [2] This ruling is not inconsistent with Walker, wherein we stated that findings under section 775.084 are a "mandatory statutory duty": We hold that the findings required by section 775.084 are critical to the statutory scheme and enable meaningful appellate review of these types of sentencing decisions. Without these findings, the review process would be difficult, if not impossible. 462 So.2d at 454. The finding in issue in Walker concerned an earlier version of the habitual offender statute, which had provided: [775.084] (3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender... . § 775.084(3), Fla....

...These are judgments and sentences." [2] Because the statutory language concerning habitual violent felony offenders is nearly identical to that of habitual felony offenders, the above analysis applies equally to habitual violent felony offenders. See § 775.084, Fla....

...s probation, the trial court must inform the defendant that if he violates his probation he may subject himself to an enhanced penalty under the habitual offender statute. We answer in the negative for we hold that the enhanced penalty provisions of Section 775.084, Florida Statutes (1979), are collateral consequences of a plea....

...Defendant, charged with grand larceny, elected to enter a plea of guilty. During the colloquy preceding the acceptance of the plea, the trial court stated the maximum statutory penalty for grand larceny, but did not mention the possibility of an enhanced penalty pursuant to Section 775.084, Florida Statutes (1979)....

...Sometime after defendant's release from jail, he was charged with violating his probation. The court conducted a hearing, found a material violation and revoked defendant's probation. The state then filed a notice of intent to seek an enhanced penalty pursuant to Section 775.084, Florida Statutes (1979). A hearing was held in accord with the requirements of Section 775.084(3)(c) and, thereafter, the court imposed an enhanced penalty of ten years with credit for time served....

...ntence is merely a collateral consequence of the conviction; it is not the type of consequence about which a defendant must be advised before the defendant enters the plea." Id. at 561. The same rationale governs Florida's habitual offender statute, Section 775.084, Florida Statutes (1979)....

...[2] Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). The Florida Statute requires specific factual findings [3] and depends ultimately upon the trial court's determination that an enhanced penalty is "necessary for the protection of the public... ." Section 775.084(3), Florida Statutes (1979)....

...Applying this reasoning to the case at bar, we find that the defendant met the criteria for classification as an habitual felony offender. For this reason we hold that the trial court did not exceed its authority *464 in revoking defendant's probation and imposing an enhanced penalty pursuant to Section 775.084, Florida Statutes (1979)....

...Since we need not resolve this issue we expressly refrain from doing so. But we note that the usual practice is exemplified in the case at bar where the state filed a motion for an enhanced penalty. Yet it is also arguable that the court, on its own motion, has the authority to implement the statute. See § 775.084(3), Fla. Stat. (1979). [3] § 775.084(3), Fla. Stat. (1979); Mangram v. State, 392 So.2d 596 (Fla. 1st DCA 1981). [4] § 775.084(3)(c), Fla....

...has a blood alcohol level of 0.10 percent or higher. (2)... . ... . (b) Any person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084....

...ent conviction of petit larceny. Like the felony DUI statute in this case, and virtually all other substantive criminal statutes, the felony petit larceny statute authorized punishment as provided in sections 775.082 (penalties), 775.083 (fines), or 775.084 (habitual offender penalties) of the Florida Statutes (1975). Justice Hatchett concluded for the Court that the felony petit larceny statute "creates a substantive offense and is thus distinguishable from [s]ection 775.084, the habitual criminal offender statute." Harris, 356 So.2d at 316....

...The felony DUI statute is indistinguishable in this regard. Section 316.193(2)(b) of the Florida Statutes (Supp. 1988) requires that "[a]ny person who is convicted of a fourth or subsequent [DUI violation] is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." As in Harris, we conclude that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI....

...ined, the trial court shall hold a separate proceeding without a jury to "determine the historical fact of prior convictions and questions regarding identity in accord with general principles of law, and by following the procedure now employed under Section 775.084." Harris, 356 So.2d at 317. Of course, it is only the procedure under section 775.084 that must be employed, that is, a separate proceeding after sufficient notice has been provided....

...[5] Moreover, the Court said, to comply with general principles of law, all evidence of the prior petit larceny convictions must be presented in the separate proceeding "`in open court with full rights of confrontation, cross-examination, and representation by counsel.'" Id. at 317 n. 2 (quoting § 775.084(3)(c), Fla....

...years' incarceration. See § 316.193(2)(b), Fla. Stat. (Supp. 1988); § 775.082(3)(d), Fla. Stat. (1987). If qualified for enhanced punishment as a habitual felony offender, a person could be sentenced to ten years' imprisonment for felony DUI. See § 775.084(4)(a)(3), Fla....

...felony offenses, received ineffective assistance from his trial attorney. Specifically, Simmons alleges that counsel failed to warn him that he would be ineligible for basic gain time because he was being sentenced as a habitual felony offender. See § 775.084(4)(e), Fla....

...At first blush the decision of our sister court in Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991), which relied in part upon Netherly, appears to support Simmons's position. Setzer moved before sentencing to withdraw his negotiated plea, stating that counsel had failed to inform him that section 775.084(4)(e) precluded the award of basic gain time in his case....

...neffective assistance. See, e.g., Johnson v. State, 523 So.2d 755 (Fla. 2d DCA 1988). [6] There are various forms of discretionary gain time established by § 944.275(4) which, unlike "basic" gain time, can be awarded even to habitual offenders. See § 775.084(4)(e), Fla....

...Rather it shows he was habitualized because of the delivery of cocaine conviction and the scoresheet states he had two prior convictions for sale of cocaine, as well as a conviction for sale of a counterfeit substance. This appears adequate to support an habitual offender sentence under section 775.084(1)(a)3, Florida Statutes (2002), which only requires that the felony for which the defendant is sentenced as an habitual offender and one of the two required prior felony convictions not be a violation of section 893.13 (purchase or possession of a controlled substance)....

...v. State, 759 So.2d 686 (Fla. 1st DCA 1998), approved sub nom., State v. McKnight, 764 So.2d 574 (Fla. 2000); and Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998), the trial court erred in classifying appellant as a habitual felony offender under section 775.084(1)(a)(3.), Florida Statutes (1997)....

...s *269 habitual offender sentence is authorized by statute because one of the predicate felony convictions on which the sentencing court relied was "not a violation of section 893.13 relating to purchase or the possession of a controlled substance." § 775.084(1)(a)(3.), Fla. Stat. (1997); see Ishmael v. State, 735 So.2d 509, 510 (Fla. 2d DCA 1999)("section 775.084(1)(a)(3.)... only prohibits habitualization if both prior offenses are for purchase or possession"); Rollins v. State, 707 So.2d 823, 824-25 (Fla. 3d DCA 1998). We recognize that subparagraph 3 to paragraph 1(a) of section 775.084 contains a grammatical error because the sentence has a plural noun ("The felony ... and one of the two prior felony convictions ...") and a singular verb ("... is not a violation..."). Nevertheless, the meaning and legislative intent of this provision is clear to us. As the Ishmael and Rollins courts, we read section 775.084(1)(a)(3.) to authorize a habitual felony offender sentence if the trial court finds that neither the sentencing felony nor one of the two predicate felonies involved a conviction for possession under section 893.13....

...Eleventh Judicial Circuit of Florida. The defendant appeals attacking solely one of these two sentences. The central issue presented for review is whether a defendant can be declared a habitual felony offender and be given an enhanced sentence under Section 775.084, Florida Statutes (1975), where (a) he has never previously been convicted of a felony in this state, and (b) he has previously been convicted of two misdemeanors [equivalent in penalty to a first degree misdemeanor in Florida] rendered on the same day in another state. We hold that under these circumstances the defendant cannot be declared a habitual felony offender and be given an enhanced sentence under Section 775.084, Florida Statutes (1975)....

...The trial court pursuant to proper notice thereafter conducted a separate sentencing hearing, at which evidence and testimony was received, to determine whether the defendant should be given an enhanced sentence under the applicable habitual criminal statute [§ 775.084, Fla....

...The Pennsylvania court imposed a $350 fine for both offenses and the defendant was ordered to leave the county. Based upon the above evidence, the trial court made the appropriate statutory findings and declared the defendant a habitual felony offender under Section 775.084, Florida Statutes (1975)....

...rceny case. A $5,000 fine was also imposed unless appropriate restitution to the victim was made as of a certain date. The defendant appeals this conviction and sentence, but has conceded before this court that no error was committed in this case. B Section 775.084, Florida Statutes (1975), is the controlling statutory authority on the issue before the court....

...ender as follows: 1. In the case of a felony of the first degree, for life. 2. In the case of a felony of the second degree, for a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a term of years not exceeding 10." § 775.084, Fla....

...g that the defendant (1) has "[p]reviously been convicted of a felony in this state," or (2) has "twice previously been convicted of a misdemeanor in the first degree in this state or another qualified offense" subsequent to his eighteenth birthday. § 775.084(1)(a) 1. a.b., Fla. Stat. (1975). A qualified offense includes "any offense in violation of a law of another state ... that was equivalent in penalty to a misdemeanor of the first degree" under Florida law. § 775.084(1)(c), Fla....

...The state herein does not disagree with this legal analysis, but instead urges that only one prior misdemeanor or qualified offense conviction is sufficient inter alia to declare a defendant a habitual felony offender under the statute. We disagree. The language of Sections 775.084(1)(a)1 b, (3), Florida Statutes (1975), belies this contention by requiring that the trial court make a finding, in order to declare a defendant a habitual felony offender, that the defendant either (1) has previously been convicted of one fe...

...ual criminal statute. In order to sentence a defendant under this statute, the trial court must find, as it did in this case, that the imposition of an enhanced sentence "is necessary for the protection of the public from further criminal activity." § 775.084(4)(a), Fla....

...he finding of a violation of probation. Thus the sentences for the predicate convictions used to classify McCall as a habitual felony offender were entered on the same day, and his habitual sentence violated the sequential convictions requirement of section 775.084(5), Florida Statutes (2002). McCall's claim is based on the assertion that probation is not a sentence for purposes of section 775.084....

...4th DCA July 23, 2003). We disagree. When it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation....

...It is then within the trial judge's discretion to sentence the defendant within that narrow range. See id. However, a trial judge may classify a defendant as a habitual felony offender under certain circumstances and impose enhanced sentences pursuant to the habitual offender statute, section 775.084 of the Florida Statutes. See § 775.084, Fla. Stat. (1989); [8] see also Mills v. State, 822 So.2d 1284, 1289 (Fla.2002) ("In section 775.084, the Legislature has also authorized increased sentences for defendants who qualify as habitual felony offenders.")....

...Peterson, 667 So.2d 199, 200 (Fla.1996) (internal quotation marks omitted) (quoting Peterson v. State, 651 So.2d 781, 782-83 (Fla. 4th DCA 1995)). The Legislature expressed that the primary purpose of the habitual felony offender statute is to incarcerate habitual offenders for extended terms. See § 775.0841, Fla. Stat. (1989). We have recognized that by enacting sections 775.084 and 775.0841 of the Florida Statutes "the legislature intended to provide for the incarceration of repeat felony offenders for longer periods of time.......

...State, 595 So.2d 952, 954 (Fla.1992). Sentencing under the habitual offender statute is permissive, not mandatory. See State v. Hudson, 698 So.2d 831, 832 (Fla.1997); Burdick v. State, 594 So.2d 267, 267-68 (Fla.1992). We have specifically stated that under "section 775.084, the sentencing court must sentence a habitual offender as provided, unless the court decides that `sentence under this section is not necessary for the protection of the public.'" Mack v. State, 823 So.2d 746, 751 (Fla.2002) (quoting § 775.084(4)(c), Fla. Stat. (1989)). Further, "[i]f the court finds that a habitual offender sentence is not necessary, `sentence shall be imposed without regard to this section.'" Id. (quoting § 775.084(4)(c), Fla....

...Accordingly, once the sentencing court has determined that a defendant meets the habitual offender criteria, "it must make the decision whether to sentence him or her as such and must either impose a habitual offender sentence or impose sentence without regard to the habitual offender statute." Id. Prior to 1988, when section 775.084 of the Florida Statutes was amended, habitual felony offender sentences were subject to the limitations of the sentencing guidelines. See State v. Callaway, 658 So.2d 983, 987 (Fla.1995). In 1988, the Legislature added subsection (4)(e), which provides: "A sentence imposed under this section shall not be subject to the provisions of s. 921.001 [the sentencing guidelines]." § 775.084(4)(e), Fla....

...The statute was further amended in 1989, but the above language in subsection (4)(e) was retained. Accordingly, the habitual offender statute in effect at the time of Matthews' sentencing expressly states that a sentence imposed under the habitual offender statute is not subject to the sentencing guidelines. See § 775.084(4)(e), Fla....

...lines *490 consideration); Holley v. State, 577 So.2d 624, 625 (Fla. 1st DCA 1991) ("[H]abitual offender sentencing is by statute exempted from sentencing guidelines procedures."); Bateman v. State, 566 So.2d 358, 359 (Fla. 4th DCA 1990) ("[S]ection 775.084(4)(e), Florida Statutes, effective October 1988, ......

...ors considered together to establish a sentencing range. Instead, the habitual offender statute prescribes life in prison as a specific sentence for first-degree felonies, and a maximum permissible sentence for second- and third-degree felonies. See § 775.084(4)(a), Fla....

...ing *491 guidelines range. Therefore, pursuant to the express language of the habitual offender statute that a "sentence imposed under [the habitual offender statute] shall not be subject to the provisions of s. 921.001 [the sentencing guidelines]," § 775.084(4)(e), Fla....

...subdivision (b) of the rule since it was not filed prior to or during the pendency of a direct appeal from his 1990 convictions and sentences. [7] The Second District's opinion does not reveal the details of Duncan's second guidelines sentence. [8] Section 775.084, Florida Statutes (1989), provides, in pertinent part: (1) As used in this act: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that: 1....

...The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and 4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding. [9] Section 775.084(4)(a) of the Florida Statutes (1989), provides: The court ....

...10. [10] Under the law at the time in 1990, had the trial court not sentenced Matthews for the escape charge under the sentencing guidelines, the court could have imposed a maximum thirty-year sentence pursuant to the habitual offender statute. See § 775.084(4)(a), Fla....

...4th DCA 2004), which certified conflict with the decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. FACTS AND PROCEEDINGS BELOW The certified issue on this appeal concerns the construction of section 775.084(5), Florida Statutes (1999), a provision of the habitual felony offender statute. Section 775.084(5) provides: (5) In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony....

...Appeal affirmed. Richardson v. State, 793 So.2d 964 (Fla. 4th DCA 2001). Richardson subsequently moved for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his rule 3.850 motion, Richardson contended that the requirements of section 775.084(5) had not been met and that his defense counsel was ineffective for failing to object to Richardson's classification as a habitual felony offender. The trial court summarily denied Richardson's rule 3.850 motion. Richardson appealed the trial court's denial of postconviction relief. The Fourth District reversed, agreeing with Richardson that his sentence violated section 775.084(5) and holding that the record attached to the order denying the 3.850 motion did not demonstrate that the cocaine conviction on April 14, 1993, and the grand theft conviction on September 23, 1993, were sentenced in separate proceedi...

...In its opinion on rehearing, the Fourth District noted that the Second District Court of Appeal in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), had reached the opposite conclusion by holding that the imposition of probation was a "sentence" for purposes of section 775.084(5)....

...[2] The State sought our review of the Fourth District's decision and argues that the conflict should be resolved in favor of the Second District's interpretation of the habitual offender statute in McCall. ANALYSIS We resolve the certified conflict between the district courts by applying section 775.084(5), Florida Statutes (1999), and holding that Richardson was sentenced on *88 April 14, 1993, when given probation for cocaine possession and on September 23, 1993, for grand theft. [3] We find no need to address subsection (2) of section 775.084, as argued by the State. The sequential conviction requirement of section 775.084(5) was developed and has been explained in this Court's case law. In accord with this case law, Richardson's convictions and sentences plainly complied with the intent of the requirement of section 775.084(5), and on that basis, we quash the decision of the Fourth District in this case....

...In 1993, the Legislature passed subsection (5) of the habitual felony offender statute. Ch. 93-406, § 2, at 2915, Laws of Fla. Based upon the timing of its adoption, it is apparent that subsection (5) was in response to our decision in Barnes. [5] *89 In Bover v. State, 797 So.2d 1246, 1250 (Fla.2001), we reviewed section 775.084(5) and stated: The habitual offender statute, section 775.084(5), specifically provides that the court must have imposed sentence for the two prior convictions separately from each other....

...tences cannot be part of the same sentencing proceeding. In the present case, Richardson did have sentences imposed for his two separate convictions at separate times. The probation ordered on April 14, 1993, was a sentence within the requirement of section 775.084(5), and the conviction and sentence for grand theft on September 23, 1993, were obviously separate and sequential. We agree with the Second District in McCall that "a sentence, as referred to in section 775.084, includes the sanction of probation." 862 So.2d at 808....

...Florida Rule of Criminal Procedure 3.700(a) defines "sentence" as "the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty." This rule definition encompasses probation. We find that the rule provides the definition of "sentence" to be used under section 775.084(5)....

...ce evidence of other qualifying convictions should any exist. Richardson, 884 So.2d at 952. [2] The First, Third, and Fifth District Courts of Appeal have subsequently agreed with McCall and held that probation is a sentence for purposes of applying section 775.084(5)....

...We conclude that the Fourth District actually considered Richardson's motion to be a motion under Florida Rule of Criminal Procedure 3.800(a). In Bover v. State, 797 So.2d 1246, 1247 (Fla.2001), we approved the issue of sequential convictions under section 775.084(5) being raised in rule 3.800(a) motions....

...This was the procedural context in which the issue was presented in McCall. See 862 So.2d at 807. [4] §§ 775.09-.11, Fla. Stat. (1941). [5] Fla. H.R. Comm. on Crim. Just., SB26-B, Staff Analysis 16, 25 (final June 18, 1993) (available at Fla. State Archives, ser. 19, carton 2389, Tallahassee, Fla.) ("This bill amends s. 775.084, Fla....

...While on probation for the offense of armed burglary, appellant committed the offense of attempted first degree murder with a firearm. The court determined that appellant was an habitual violent felony offender and that he became subject to a sentence pursuant to the newly amended section 775.084(4)(b)1., Florida Statutes (Supp....

...r the armed burglary offense. The next day, the trial judge recalled appellant and resentenced him. The judge explained that he had erroneously sentenced appellant to twenty years on the attempted first degree murder conviction, whereas the statute, section 775.084(4)(b)1., authorized the imposition of the fifteen year minimum mandatory sentence only in conjunction with a life sentence....

...y. State v. Pentaude, 500 So.2d 526 (Fla. 1987). 2. The guideline sentence of 17-22 years for Attempted First Degree Murder is not applicable because of this court's finding and adjudication that the defendant is an habitual violent felony offender. Section 775.084(4)(e), Florida Statutes (1988)....

...The primary issue raised by appellant is whether a sentence for a felony of the first degree under the habitual violent felony offender statute must be for life, in order to invoke the fifteen year mandatory provision, or whether a life sentence is permissive rather than mandatory. Appellant argues that under section 775.084(4)(b)1., it is not unlawful to impose a twenty year sentence with a minimum mandatory term of fifteen years....

...fender for life; it does not provide that the court "shall" sentence him for life. Thus, argues appellant, the trial court was not permitted to resentence appellant to the greater punishment of thirty years, since its first sentence was a legal one. Section 775.084(4)(a)1., governing the sentencing of habitual felony offenders, provides: (4)(a) The court, in conformity with the procedure established in subsection (3), shall sentence the habitual felony offender as follows: 1....

...y Insurance Co. v. State, 415 So.2d 109, 111 (Fla. 3d DCA 1982), or where a statute says a thing "may" be done by a public official for the public *795 benefit. Seaboard Airline Railway Co. v. Wells, 100 Fla. 1027, 130 So. 587, 593 (1930). Examining section 775.084 in its entirety, we observe, initially, that the statute permits the court some discretion in determining whether a defendant is an habitual felony offender or habitual violent felony offender. It is also clear that the court has the option, under section 775.084(4)(c), Florida Statutes (Supp....

...1988), of deciding that sentencing under the statute is not necessary for the protection of the public. Once the court decides, however, to sentence a defendant as an habitual felony offender or habitual violent felony offender, then the court is required to impose sentence in conformity with sections 775.084(4)(a) or 775.084(4)(b). It follows that in order to invoke the fifteen year mandatory provision of section 775.084(4)(b)1., the court was required to impose a life sentence....

...As stated earlier, although the trial court has some discretion in determining a defendant's habitual violent felony offender status, once the trial court determines to sentence an offender as an habitual violent felon, then the court is required to impose sentence in conformity with section 775.084(4)(b). While it is true that a sentence imposed under section 775.084 is not subject to the sentencing guidelines, section § 775.084(4)(e), it is our view that only a sentence imposed in accordance with section 775.084(4)(a) or (b) is exempt from the guidelines....

...The court may not, as it did in this case, adjudicate an offender to be an habitual violent felon and in the case of a felony of the first degree, sentence the felon to a term of years rather than to a life sentence with a minimum mandatory of fifteen years, required by section 775.084(4)(b)1. The felon must be sentenced under section 775.084 or pursuant to the sentencing guidelines, but the trial court may not, as it did here, sentence the felon to a departure guidelines sentence without written reasons on the grounds that the defendant is an habitual violent felony offender. Because the trial court has already expressed the view that a life sentence is not appropriate in this case, we conclude that appellant may not be sentenced in accordance with section 775.084, and the trial court must impose a sentence in accordance with the provisions of the sentencing guidelines....

...riminal Procedure 3.800. We reverse. Appellant alleged in his motion that he did not receive the state's written notice of enhancement and that he did not know in advance of sentencing that the state intended to seek an enhanced sentence pursuant to section 775.084, Florida Statutes (1989)....

...He further admits that his attorney received a copy of this notice. He claims that he did not personally receive a copy of this notice and that he was unprepared to challenge the details of his prior record at the sentencing hearing. The length and the conditions of Mr. Judge's sentence are not illegal under section 775.084, Florida Statutes (1989)....

...Moreover, the effect of the habitual offender status in that case was apparently less significant to the defendant than in this case. The trial court did not extend Mr. Grubbs' sentence as a habitual offender. Instead, Mr. Grubbs received concurrent mandatory minimum three-year sentences. See §§ 775.084, 775.087(2) Fla....

...allow sentencing under the habitual offender statute. See State v. Barnes, 595 So.2d 22 (Fla. 1992). Second, the defendant argued that he had not personally received written notice of the state's intention to sentence him as a habitual offender. See § 775.084(3)(b), Fla....

...ions of fact or require a lengthy evidentiary hearing. For example, unless a defendant is classified as a habitual offender, a sentence is "illegal" if it imposes more than five years' incarceration for a third-degree felony. Sections 775.082(3)(d), 775.084(4)(a)3., (b)3., Fla....

...the resulting sentence. II. THE NOTICE REQUIREMENT FOR SENTENCING AS A HABITUAL OFFENDER IS PROCEDURAL AND IS NOT AN ASPECT OF THE SENTENCE REVIEWABLE UNDER RULE 3.800(a) The dispositive issue in this appeal is whether the written notice required in section 775.084 is a procedural aspect of sentencing or a substantive requirement that affects the terms and conditions of a sentence. The terms and conditions of the defendant's sentence are not illegal under section 775.084, Florida Statutes (Supp....

...Massey v. State, 589 So.2d 336 (Fla. 5th DCA 1991). As a result of the King analysis, we conclude that a habitual offender sentence is illegal for purposes of rule 3.800(a) only if: 1) the terms or conditions of the sentence exceed those authorized by section 775.084 for the adjudicated offense, or 2) a prior offense essential to categorize the defendant as a habitual offender does not actually exist....

...We emphasize that this opinion does not establish what remedy a defendant might have on direct appeal or under rule 3.850 to challenge his or his attorney's failure to receive written notice prior to the sentencing hearing. Since the trial judge might be convinced by the defendant's "submission" under section 775.084(3)(b), Florida Statutes (Supp....

...It is perhaps enough if lawyers and judges keep in mind that these distinctions do exist for good jurisprudential reasons and may affect the relief available at various stages postconviction. [2] We note that the defendant was sentenced under the amended habitual offender statute. Section 775.084, Fla....

...to impose such a sentence at the original sentencing." Id. at 1138. The defendant in King was convicted of burglary of a dwelling and robbery, and at sentencing, the trial court found the defendant qualified as a habitual felony offender pursuant to section 775.084, Florida Statutes (1989)....

...ntence he did not receive—a habitual offender sentence. As we explained in King, sentencing under the habitual offender statute is a two-step process: First, the sentencing judge must determine whether a defendant qualifies as an habitual offender. § 775.084(3), Fla....

...This determination is ministerial rather than discretionary. King v. State, 597 So.2d 309, 313 (Fla. 2d DCA), review denied, 602 So.2d 942 (Fla.1992). Second, the judge must decide whether the defendant will be sentenced as an habitual offender. Id.; § 775.084(4)(c), Fla....

...Following the State's logic would permit the sentencing court, by placing the defendant on straight probation, to postpone the decision on whether to sentence the defendant as a habitual offender until such time as his or her probation is revoked. This is contrary to the habitual offender statute. *751 Under section 775.084, the sentencing court must sentence a habitual offender as provided, unless the court decides that "sentence under this section is not necessary for the protection of the public." § 775.084(4)(a), (c), Fla. Stat. (1989). If the court finds that a habitual offender sentence is not necessary, "sentence shall be imposed without regard to this section." § 775.084(4)(c), Fla....

...State, 789 So.2d 1150 (Fla. 3d DCA 2001); Dennis v. State, 784 So.2d 551 (Fla. 4th DCA 2001); Gordon v. State, 787 So.2d 892 (Fla. 4th DCA 2001). A defendant qualifies for sentencing under the four classifications of the habitual offender statute, section 775.084, if the trial court finds that the defendant has at least two prior felony convictions and he or she committed the instant offense (1) while serving a prison sentence or a term of supervision for a prior felony conviction or (2) within five years of the date of the last felony conviction or the date of release from prison or supervision from the last prior felony conviction. See § 775.084(1)(a)(2)(a), (b), (1)(b)(2)(a), (b), (1)(c)(2)(a), (b), (1)(d)(3)(a), (b), Fla. Stat. (2004). In addition, in order to qualify as a violent career criminal, the trial court must find that the "defendant has been incarcerated in a state prison or a federal prison." § 775.084(1)(d)(2). The provisions in section 775.084 allowing for enhanced sentencing if the new offense was committed within a certain period of time from the defendant's release from prison are similar to the PRR provision in section 775.082(9)(a), Florida Statutes (Supp.1998), which...

...Thus, at the time the defendant was habitualized he had two prior felony convictions but only one prior felony offense. Because the predicate felonies are not sequential, the trial court erred in imposing habitual felony offender sentences on the burglary and grand theft charges. Section 775.084(5), Florida Statutes states that "[i]n order to be counted as a prior felony for the purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and senten...

...This subsection was added by the legislature in 1993 in response to the Florida Supreme Court's decision in State v. Barnes, 595 So.2d 22 (Fla.1992) which held that sequential convictions were not required by the habitual offender statute then in effect. The legislature's intent in adding section 775.084(5) was to return the habitual offender statute to its pre- Barnes status which required not only sequential convictions but sequential offenses as well....

...The Florida courts are obligated to give effect to the plain language of a constitutionally valid statute and may resort to extrinsic aides to statutory construction only if a statute is ambiguous. Holly v. Auld, 450 So.2d 217 (Fla.1984). We have no reason to resort to extrinsic aides to construe section 775.084(5), because the intent of the legislature is clear from the wording of the statute itself....

...If the predicate felony must be separately sentenced "prior to the current offense", then it follows that the commission of the predicate felony must also precede the commission of the current offense. Because one of the necessary predicate felony convictions does not qualify as a prior felony under section 775.084(5), Florida Statutes, the defendant's habitual offender sentence must be reversed and the case remanded for resentencing. On remand, the state may again seek a habitual offender sentence as long as all the requirements of section 775.084, Florida Statutes are met....

...se, the initial sentence in Ashley was valid. See Ashley, 850 So.2d at 1266-67 . The trial court in Ashley pronounced a sentence and later added terms of habitualization and imposed mandatory minimum terms, neither of which were required by law. See § 775.084(1 )(b), Fla. Stat. (1999) (" ‘Habitual violent felony offender’ means a defendant for whom the court may impose an extended term of imprisonment_”) (emphasis added); § 775.084(4)(b), Fla....

...open to the public or the defendant is licensed or invited to enter or remain. (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.083, or § 775.084, if, in the course of committing the offense, the offender: (a) Makes an assault or battery upon any person. (b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon. (3) If the offender d...

...and the structure or conveyance entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. 10 committed not for profit....

...e date of July 1, 1999. The remaining twelve sections, which are set forth in forty-one pages, may be summarized as follows: Section 2: expands the definition of "prison release reoffender" in section 775.082, a sentencing statute. Section 3: amends section 775.084 to redefine "habitual felony offender," to define "three-time felony offender," and to require the imposition of mandatory minimum sentences on persons fitting the definition of "three-time felony offender." Section 4: amends section...

...ery of a law enforcement officer. Section 5: amends section 784.08 to provide a mandatory minimum sentence for aggravated assault on a person 65 years or older and for aggravated battery on a person 65 years or older. Section 6: amends references to section 775.084 found in section 790.235, in conformity with section 3....

...burglary, to include a "railroad vehicle," the statute previously referencing only a "railroad car." Thus, only two of the Act's twelve substantive sections relate specifically to the "Three-Strike" violent felony provisions: section 3, which amends section 775.084 to define "three-time felony offender" and provide mandatory minimum terms for persons meeting the criteria, and section 6, which amends references to section 775.084 found in section 790.235 to conform to section 3....

...FACTS AND PROCEDURAL BACKGROUND Franklin was convicted of armed robbery and resisting arrest based on acts that occurred after the effective date of chapter 99-188. He received a sentence of forty years in prison as a habitual felony offender, pursuant to section 775.084, Florida Statutes (1999), which had been amended by section 3 of the Act. Franklin's prior criminal history consisted of one felony conviction (possession of cocaine) and one felony for which adjudication of guilt was withheld (burglary of a dwelling). Prior to the Act's amendment to section 775.084, an offense for which adjudication of guilt had been withheld would not have qualified as a predicate for habitual offender sentencing unless the subsequent offenses pending for sentencing was committed while the offender was on probation or community control after the withhold of adjudication. See § 775.084(1)(a)(2)(b), Fla....

...818 So.2d at 549. In contrast, the Third and Fourth Districts determined that including section 13 does not violate the single subject clause because the section expands the definition of the crime of armed burglary, which is an offense included in section 775.084, the habitual offender sentencing statute....

...QUINCE, J., dissents with an opinion, in which ANSTEAD and LEWIS, JJ., concur. Appendix A An act relating to sentencing; creating the "Three-Strike Violent Felony Offender Act"; amending s. 775.082, F.S.; redefining the term "prison releasee reoffender"; revising legislative intent; amending s. 775.084, F.S., relating to sentencing of habitual felony offenders, habitual violent felony offenders, and violent career criminals; redefining the terms "habitual felony offender," "habitual violent felony offender" and "violent career criminal";...

...Second District in Taylor. See Franklin, 836 So.2d at 1115 (Green, J., dissenting). [10] Armed burglary is one of the enumerated offenses for which a habitual violent felony offender or three-time violent felony offender sentence may be imposed. See § 775.084(1)(b)(1)(m), Fla. Stat. (2003); § 775.084(1)(c)(1)(m), Fla....

...This Court has repeatedly held that sentencing under the habitual offender statute is permissive, not mandatory. Walsingham v. State, 602 So.2d 1297 (Fla.1992); Burdick v. State, 594 So.2d 267 (Fla.1992). This discretion extends to sentencing under both section 775.084(4)(a), Florida Statutes (1995), the habitual felony offender provision, and section 775.084(4)(b), the habitual violent felony offender provision....

...Id. The district courts reached the same conclusion in the other conflict cases. See Sims, 605 So.2d at 997; Martin, 608 So.2d at 571. We do not agree with the interpretation imposed by the conflict cases. In Burdick, we explained that even though section 775.084(4)(a) provides that the court "shall" sentence an habitual felony offender to a specified term of years, the statute must be read consistently with subsection (4)(b), which provides that the court "may" sentence an habitual violent felony offender to the terms specified....

...truction that when a statute is reenacted, the judicial construction previously placed on the statute is presumed to have been adopted in the reenactment." Id. at 271. Thus, the legislature has at least tacitly approved the Court's interpretation of section 775.084(4) as providing for permissive sentencing....

...KOGAN, C.J., and OVERTON, SHAW and ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion, in which GRIMES, J., concurs. WELLS, Justice, dissenting. I must dissent because I can find no logical basis for simply eliminating by judicial fiat the plain language of section 775.084(4)(b), which requires minimum mandatory sentences for habitual violent felony offenders. The majority opinion supplies no such basis. The majority cites to Burdick v. State, 594 So.2d 267 (Fla.1992), in which this Court converted "shall" to "may" in section 775.084(4)(a), Florida Statutes (1995), pertaining to habitual felony offenders. I can understand the logic of our rewrite of the statute in Burdick so that section 775.084(4)(a) would conform with section 775.084(4)(b), which uses the term "may." It is logical to conclude that the legislature did not intend to allow permissive sentencing for violent felony offenders while requiring mandatory sentencing for nonviolent felony offenders. However, it cannot reasonably be deduced from Burdick that this Court should rewrite section 775.084(4)(b) so as to delete the following underlined language of the statute: 1....

...*834 Rather, the reasonable and logical interpretation of this statute is that given to it by Judge Mickle in the district court's opinion in White v. State, 618 So.2d 354 (Fla. 1st DCA 1993): Noting the lack of minimum mandatory provisions in the habitual felony offender provisions in section 775.084(4)(a)(1)-(3), we believe our interpretation of the minimum mandatory provisions in the habitual violent felony offender statute, section 775.084(4)(b)(1) through (4)(b)(3), as being, in fact, mandatory, is consistent with the legislative intent to distinguish habitual offenders from habitual violent offenders and to further enhance the latter's sentences....

...Franke raised an additional claim with respect to the armed robbery and armed burglary charges: that because in his view they are life felonies, they were not subject to habitualization. As just noted, the two offenses are first-degree felonies punishable by life. A first-degree felony is subject to habitualization. § 775.084(4)(a)(1); see also Harris v....

...State, 593 So.2d 301, 301 (Fla. 2d DCA 1992) (noting that a "first degree felony, no matter what the punishment imposed by the substantive law that condemns the particular criminal conduct involved, is still a first degree felony and subject to enhancement by Section 775.084(4)(a)(1), Florida Statutes" (citation and internal quotation marks omitted))....

...er 30, 1986, instead of the guidelines' recommendation of seven to nine years. In doing so, the trial judge entered two separate orders, one of which found respondent to be an habitual offender falling under an ostensibly mandatory life penalty, see section 775.084(4)(a)1., Fla....

...Schuster, 331 So.2d 297 (Fla. 1976). This is especially true where the latter statute specifically addresses an entire field of law, as the statutory basis of the guidelines was meant to do. See Whitehead, 498 So.2d at 865. The mandatory word "shall" contained in section 775.084(4)(a)1....

...without unwarranted variation. 498 So.2d at 865. Moreover, we previously have concluded that the guidelines take into account all factors considered in habitualizing *53 a repeat offender. Id. With regard to the mandatory life sentence contained in section 775.084(4)(a)1., we thus conclude that the objectives and considerations of the habitual offender statute are fully accommodated by the sentencing guidelines. In light of this, and the clear language of section 921.001(4)(a), we must conclude that section 775.084 cannot be considered as providing an exemption for a guidelines sentence [in this context]. 498 So.2d at 865. We are further persuaded that the legislature never intended section 775.084(4)(a)1. to be mandatory. The word "shall" as used in section 775.084(4)(a)1....

...ture itself never inserted the word in the statute and that the word "shall" either was an editorial error or a misapprehension of actual legislative intent by the editors. Both chapters 75-116 and 75-298, Laws of Florida, the only two laws amending section 775.084 during the 1975 session, clearly use the word "may." This expresses an unequivocal legislative intent that the life sentence should be permissive, not mandatory. [2] Moreover, no prior or subsequent legislation contained in the Laws of Florida has purported to change the word "may" to "shall." In harmony with this legislative intent, we accordingly hold that section 775.084(4)(a)1....

...has been implicitly repealed by the enactment of section 921.001, Florida Statutes (1985), to the extent that the former may be construed as requiring a mandatory life penalty. See ch. 82-145, Laws of Fla. As we did in Winters, however, we conclude that section 775.084(4)(a)1. nevertheless may be accorded a field of operation in harmony with the guidelines. See Carawan. We thus hold that section 775.084(4)(a)1., Florida Statutes, must be read only as authorizing a permissive maximum penalty of life in prison....

...Winters. Thus, when a felony offender is properly habitualized and the guidelines sentence is less than life, the trial judge may not exceed the guidelines' recommendation absent a valid reason for doing so, notwithstanding the mandatory language of section 775.084(4)(a)1....

...McDONALD, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur. NOTES [1] The relevant portion of the habitual offender statute states: The court ... shall sentence the habitual felony offender as follows: 1. In the case of a felony of the first degree, for life. § 775.084(4)(a)1., Fla....

...napplicable to the 1988 version of the habitual offender statute. According to the state, the 1988 statute made no mention of sequential convictions, but only required a finding that appellant had "previously been convicted of two or more felonies." § 775.084(1)(a)1, Fla....

...ons on the authority of Joyner. According to appellee, the plain meaning of the 1988 statute does not require sequential convictions because it authorizes enhanced sentences for defendants who had "previously been convicted of two or more felonies." § 775.084(1)(a)1, Fla....

...when the two-tiered system was discarded. From the time the two-tiered scheme was abandoned in 1972, up until the adoption of the 1988 version, it was at least open to question whether sequential convictions were required. As originally promulgated, section 775.084, authorized the imposition of habitual offender sanctions upon the defendant's second felony conviction. § 775.084(1)(c)-(d), Fla....

...It was reasonable, and in keeping with the majority rule in other jurisdictions, to interpret the new provision to require sequential convictions as did its predecessor, section 775.09; both statutes imposed habitual offender status upon the defendant's second conviction. After 1975, section 775.084 imposed habitual offender status upon defendants who had "previously been convicted of a felony" or had *761 "twice previously been convicted of a misdemeanor." § 775.084(1)(a)1, Fla....

...1985). Where habitualization was based upon misdemeanors, it was at least implicit in the language "twice previously convicted" that the offenses be committed separately and that the convictions be obtained in separate proceedings. See Shead, supra . Section 775.084 underwent extensive amendment in 1988. As amended, the statute permits habitualization where "[t]he defendant has previously been convicted of two or more felonies in this state." § 775.084(1)(a)1, Fla....

...Although the 1988 amendments brought a change in language which seemed to leave little room for sequential convictions, the amendments do not appear to have brought a corresponding change in the purpose of the statute. There is no indication that in amending section 775.084 the legislature sought to alter the purpose behind the habitual offender provision or to excise the sequential conviction requirement that had long been a part of the law....

...ement. See Senate Staff Analysis, S. Bill 307, June 1, 1988, p. 2; House of Representatives Committee on Criminal Justice, Staff Analysis, H. Bill 1710, May 20, 1988, pp. 1-2. In short, sequential convictions are not required by the plain meaning of section 775.084(1)(a)1, Florida Statutes (Supp....

...the vast majority of jurisdictions, [4] we are aware that our holding interprets the statute in a manner that goes beyond the plain language of the provision. Consequently, we certify the following question as one of great public importance: WHETHER SECTION 775.084(1)(a)1, FLORIDA STATUTES (SUPP....

...WOLF, J., concurring in part, dissenting in part with opinion in which BOOTH, JOANOS, NIMMONS and BARFIELD, JJ., concur. ZEHMER, Judge (specially concurring). I agree with the thorough analysis in the majority opinion authored by Judge Miner. Indeed, I had thought that this construction and application of section 775.084, Florida Statutes, was well settled in this state....

...have not been directly changed by the specific language of any amendments to that section. Notice should be taken, however, of the inconsistent positions recently taken by the Attorney General's office concerning the construction and application of section 775.084. The Attorney General argues in the state's brief filed in this appeal that two felony convictions obtained at the same time are sufficient to satisfy section 775.084 as amended in 1988, and further contends that the 1989 amendment to that section [5] "clearly indicates the intent of the legislature to sentence as a habitual offender a defendant with two prior felony convictions, even if the convictions were entered on the same day." (Answer Brief, p....

...806], 30 So.2d 304 (Fla. 1947); Taylor v. State, 15 F.L.W. 828 [558 So.2d 1092] (Fla. 5th DCA March 29, 1990)." (Answer Brief in Williams at p. 4). Last month, the Third District Court of Appeal in Collazo v. State, 573 So.2d 209 (Fla. 3d DCA 1991), likewise construed section 775.084(1)(a), as amended in 1989, to require sequential or successive convictions in the sense stated above pursuant to the statutory language requiring previous convictions of two or more felonies....

...Based on this case law the instant case should be remanded for resentencing. (Answer Brief in Collazo at p. 5). It is readily apparent, therefore, that the state's confessions of error in Williams *764 and Collazo, as well as in Lawley, were based on a construction of the statutory language in section 775.084(1) that directly conflicts with the construction being urged in its argument being made to this court in the instant case....

...or more offenses (felonies) in the course of one criminal transaction or episode is to be sentenced separately for each criminal offense, with imposition of either concurrent or consecutive sentences for each such offense. Nothing in the language of section 775.084(1) as amended in 1988 or 1989 suggests a clear, unambiguous legislative intent to recede from this long-recognized theoretical underpinning of the habitual offender statute so as to make the statute applicable when two felony convictions are obtained on the same day, provided the two convictions do not arise out of the same episode or transaction. Nothing in the amended language of section 775.084(1) suggests that the trial court should look behind the date and fact of the prior convictions to learn the evidentiary basis of the alleged prior conviction to make this determination; on the contrary, section 775.084(1) speaks in terms of a defendant's having committed a felony "within 5 years of the date of the conviction of the last prior felony or other qualified offense of which he was convicted ..." or the date of release from a prison sentence served pursuant to a prior felony conviction....

...ions of these courts. The district court decisions are based on legal principles consistently and uniformly recognized and applied since the supreme court's Joyner decision in 1947. Nothing in the statutory language of the 1988 or 1989 amendments to section 775.084 clearly and unambiguously demonstrates any legislative *765 intent to change these established legal principles governing the construction and application of the habitual offender statute....

...I concur with the decision of the majority to certify the question as one of great public importance, but in all other respects, I must respectfully disagree with the well-researched and well-written opinion of the majority. The majority opinion recognizes that the plain meaning of section 775.084(1)(a), Florida Statutes (Supp....

...ative policy expressed by the Legislature which conflicts with the literal interpretation. [6] See White v. Pepsico, Inc., 568 So.2d 886 (Fla. 1990); Board of County Comm'rs v. Department of Community Affairs, 560 So.2d 240, 242 (Fla. 3rd DCA 1990). Section 775.084(1)(a), Florida Statutes (1989), provides that a defendant qualifies as a "habitual felony offender" if "the defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses." (Emphasis added)....

...Under the standard so fixed, the requirement is clearly apparent... . Joyner, 30 So.2d at 306. [2] In Wilken v. State, 531 So.2d 1011 (Fla. 4th DCA 1988), the Fourth District applied the sequential conviction requirement to the habitual misdemeanant provision in section 775.084, Florida Statutes (1987)....

...[4] See Annotation, "Chronological or Procedural Sequence of Former Convictions as Affecting Enhancement of Penalty for Subsequent Offense Under Habitual Criminal Statutes," 24 A.L.R.2d 1247 (1952). [5] Chapter 89-280, Laws of Florida (1989), amended section 775.084(1)(a) to read: "The defendant has previously been convicted of any combination of two or more felonies in this state......

...In Byrd, the court determined that public policy expressed in other state and federal statutory enactments against sexual harassment would preclude the normal broad interpretation of the statutory workers' compensation immunity. Neither case is applicable to an interpretation of § 775.084, Fla....

...PATTERSON, Judge. The appellant challenges his sentence of twenty years' incarceration followed by ten years' probation for the sale of cocaine within 1,000 feet of a school. He argues that his enhanced sentence under the amended habitual offender statute, section 775.084, Florida Statutes (Supp....

...orida Constitution. We affirm. The legislature amended the habitual offender statute, effective October 1, 1988, and deleted the requirement that the trial court find it necessary for the protection of the public to impose the enhanced sentence. See § 775.084(3), Fla....

...Furthermore, the state need prove only objective criteria for a defendant to be classified as a habitual felony offender: two or more of the requisite felony convictions within the prescribed time frame that have not been pardoned or the subject of post-conviction relief. See § 775.084(1)(a), Fla. Stat. (Supp. 1988). Thus, section 775.084 does not create an arbitrary classification and does not violate the appellant's constitutional right to equal protection of the laws. The appellant argues next that the amended statute unconstitutionally shifts the burden of proof to the defendant in violation of his right to due process of law. Section 775.084(4)(c), Florida Statutes (Supp....

...is section." The appellant claims that the foregoing language requires a defendant to prove that he is not a danger to society and is in essence a "mandatory presumption" which a defendant must rebut in order to avoid the enhanced sentencing. First, section 775.084 no longer requires a finding of necessity for the protection of the public. Second, section 775.084 "does not create a new substantive offense." Eutsey, 383 So.2d at 223....

...er to society. The *39 trial judge's power to not impose an enhanced sentence does not shift the burden of proof, but is more analogous to a judge's discretion to depart downward based on valid reasons in cases governed by the sentencing guidelines. Section 775.084, Florida Statutes (Supp....

...For example, assuming Dickey had a prior felony conviction, another third-degree felony committed during the time that Dickey was on probation based on his plea in this case could have doubled his potential prison sentence on the subsequent felony from five to ten years. See § 775.084(1)(a), (2), Fla. Stat. (1995). Accordingly, when advising a defendant who inquires about the future consequences of a felony plea offer, competent Florida counsel should explain how the conviction or plea may subsequently be used against the defendant under section 775.084, which can greatly increase the maximum authorized sentence and trigger mandatory minimum terms for some convictions. [6] The sharp increase in potential sentence exposure under the several recidivist enhancement schemes in section 775.084 (habitual felony offender, habitual violent felony offender, three-time violent felony offender, violent career criminal) far exceeds the normal expectation "that a prior conviction for a crime may cause [a defendant] to be punished more harshly than a first-time offender." Stansel v....

...As noted by the First District, counsel is not required to "familiarize him or herself with every habitualization statute throughout the land." Dickey, 30 Fla. L. Weekly at D446. Advice of the potential future sentence-enhancing consequences under section 775.084 would be sufficient warning to negate an ineffective assistance claim even if the plea is used to enhance a sentence imposed by another state or the federal government....

...clined the offer and decided to proceed to trial. A jury later convicted Smith on both counts of the information, and the state filed its notice of intent to seek a habitual-violent-felony-offender enhancement under Florida law, Fla. Stat. § 775.084(1)(b)....

...al-offender law and advised Smith that the maximum sentence he faced if convicted at trial was seventeen years. We accept that, while an out-of-state conviction cannot be used to establish habitual-felony-offender status under Fla. Stat. § 775.084(1)(a) (Supp.1988),2 it can be used to enhance a defendant's sentence as a habitual violent felony offender under Fla. Stat. § 775.084(1)(b) (Supp.1988).3 See Canales v....

...has been held in either federal or state court. Discussion 2 A habitual felony offender is a defendant who "has previously been convicted of two or more felonies in this state." Fla. Stat. § 775.084(1)(a) (Supp.1988) (emphasis added). 3 A"habitual violent felony offender" is a defendant who "has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for" one (or more) of a list of enumerated violent felonies. Fla. Stat. § 775.084(1)(b) (Supp.1988). 4 Smith's petition to the district court also included a claim challenging the state court's use of his out-of-state conviction to enhance his sentence....

...considering all the circumstances." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The clarity or lack of clarity of Florida law about the use of an out-of-state conviction to enhance a defendant's sentence under the habitual-violent-felony-offender provision, Fla. Stat. § 775.084(1)(b), is important in determining whether the advice given by Smith's counsel was reasonable when it was given. 3 Ignorance of well-defined legal principles is nearly inexcusable....

...784, 790 (D.S.C.1992) ("[A]n attorney cannot be held liable for following the plain terms of a statute when there are not compelling circumstances to suggest [otherwise,]" even when a court later decides that interpretation is erroneous.). In the instant case, Smith was sentenced under section 775.084(1)(b), Fla. Stat. (Supp.1988), which was effective 1 October 1988. Section 775.084(1)(b) does not specifically say whether out-of-state convictions may serve as predicate offenses for an enhanced sentence. The state made its plea offer in January 1990, and Smith rejected it the same day it was made....

...Smith has not pointed to case law that existed when his counsel rendered his advice that was contrary to his counsel's conclusion. Smith instead argues that the habitual-offender provisions are inherently clear. He says that a comparison of sections 775.084(1)(a) and 775.084(1)(b) shows the obvious error in his counsel's advice: the phrase "in this state" modifying the qualifying convictions is conspicuously absent from the 5 habitual-violent-felony-offender provision, though it appears in the habitual-felony-offender provision....

...."), cert. granted, --- U.S. ----, 119 S.Ct. 901, --- L.Ed.2d ---- (1999). The defendant in Canales asserted the same view that Smith's counsel allegedly held: that out-of-state convictions could not be used to enhance a defendant's sentence under section 775.084(1)(b). The Canales court never indicated that the defendant's contentions were frivolous or otherwise unreasonable, though it ultimately discounted them. And the Canales court does not use words like "plain meaning" or "unambiguous" in its opinion construing the pivotal statute. Also, section 775.084(1)(b) designates specific offenses that will trigger an enhancement....

...Each of these offenses is defined by Florida law. See, e.g., Fla. Stat. § 806.01 (defining arson); Fla. Stat. § 794.011 (defining sexual battery); Fla. Stat. § 812.13 (defining robbery). It was not unreasonable for Smith's counsel to think, in the context of Florida's criminal law, that section 775.084(1)(b) referred to those offenses as they are designated by Florida law, in other words, that the Florida statute contemplated convictions under Florida law for the listed offenses....

...2D DCA 1992), DID THE DECISION IN McKNIGHT V. STATE, 616 So.2d 31 (FLA. 1993) EXPRESSLY ADOPT THAT PORTION OF THE OPINION IN KING HOLDING THAT UPON SENTENCING A HABITUAL OFFENDER TO COMMUNITY CONTROL OR PROBATION, THE TRIAL COURT MUST (1) FIND PURSUANT TO § 775.084(4)(C) THAT A SENTENCE AS A HABITUAL OFFENDER WAS NOT NECESSARY AND (2) SENTENCE THE OFFENDER UNDER THE GUIDELINES, SETTING *612 FORTH WRITTEN REASONS FOR DOWNWARD DEPARTURE SHOULD THE GUIDELINES RECOMMENDATION CALL FOR A SENTENCE OTHER THAN PROBATION OR COMMUNITY CONTROL? Id....

...2d DCA), review denied, 602 So.2d 942 (Fla. 1992), the court held that a judge who wishes to impose a sentence upon a habitual offender more lenient than the one provided by the habitual offender statute must decide that an enhanced sentence is not necessary to protect the public. See § 775.084(4)(c), Fla....

...In McKnight, 616 So.2d at 31, this Court adopted King's holding and rationale. We did not intend nor do we read King to require a specific finding that an enhanced sentence is not necessary for the protection of the public. By virtue of sentencing a habitual offender to a more lenient sentence than that required by section 775.084, Florida Statutes (1991), the judge has necessarily decided that a habitual offender sentence is not necessary....

...Brown, 476 So.2d 660, 662 (Fla. 1985) (holding that a penalty could not be enhanced under section 775.087(1) for a crime in which the use of a deadly weapon was an essential element, because that statute by its express terms did not apply to such felonies). As section 775.084 itself reflects, the Legislature has exempted certain offenses from the ambit of the habitual felony offender statute, as demonstrated by its partial exclusion of felonies committed pursuant to section 893.13, Florida Statutes (relating to the purchase or the possession of a controlled substance). See § 775.084(1)(a)(3), Fla....

...5th DCA 2000) (observing that section 812.014(2)(d), Florida Statutes (1991)—which had previously provided that sentencing for felony petit theft was required under section 775.082 (general criminal penalties), section 775.083 (criminal fines) or section 775.084 (habitual offenders) —was amended, and the reference to section 775.084 (habitual offenders) was deleted)....

...*1288 this Court's statement in Merritt that section 784.07 is an enhancement statute "should be adhered to by the lower courts," but this did not preclude the Fifth District's holding that King could be sentenced pursuant to both section 784.07 and section 775.084), review denied, 779 So.2d 271 (Fla.2000)....

...Metropolitan Dade County, 394 So.2d 981, 988 (Fla.1981). Here, the Legislature has made the offense of battery, which is otherwise a misdemeanor, a third-degree felony when the victim is a law enforcement officer. See § 784.07(2)(b), Fla. Stat. (Supp.1998). In section 775.084, the Legislature has also authorized increased sentences for defendants who qualify as habitual felony offenders....

...Thus, the imposition on a qualifying defendant of one sentence under the habitual felony offender statute for the crime of battery on a law enforcement officer is proper, and not violative of double jeopardy. Indeed, if a conviction pursuant to section 784.07 were not treated as a qualifying offense under section 775.084, this would, in effect, nullify the clear legislative expression of intent to treat battery on a law enforcement officer as a felony....

...ere based upon a single offense. Id. at 184. Here, in contrast, there is only one punishment being imposed for a single offense. That offense is reclassified as a felony pursuant to section 784.07, and therefore constitutes a qualified offense under section 775.084. As reasoned by the Fifth District in King: [Section 775.084] was enacted to cause persons who are repeat offenders to be treated differently from those who are not....

...fore convicted of petit theft, is guilty of a felony and the punishment may be further enhanced by a habitual felony offender statute where appropriate. It is our determination to analogize the felony petit theft statute, section 812.014(3)(c), with section 775.084 because *1290 a similar procedure is used in classifying and sentencing the felony petit theft defendant as is used in classifying and sentencing the repeat offender sentenced pursuant to section 775.084....

...Based upon the foregoing discussion, the apparent conflict between Mills and Merritt is resolved. Accordingly, we approve the First District's decision in Mills to the extent consistent with this opinion. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD, and PARIENTE, JJ., concur. QUINCE, J., dissents. NOTES [1] Section 775.084, Florida Statutes (Supp. 1998), provides, in pertinent part: 775.084....

...Appellant was found guilty of sale or delivery of cocaine, and after proper notice and submission of proof of prior convictions, he was sentenced as an habitual violent felony offender. The issues on appeal are: (1) whether Chapter 89-280, Laws of Florida, which amended section 775.084, the habitual felony offender provision, violates the one-subject rule of the Florida Constitution, and (2) whether section 775.084, Florida Statutes (1989), is inequitable, irrational, and vague, in violation of Article I, sections 9 and 16 of the Florida Constitution, and the Fourteenth Amendment to the U.S....

...Since the instant offense was committed within the time period between the October 1, 1989, effective date of the 1989 amendments to the habitual felony offender provisions and their re-enactment, effective May 2, 1991, as a part of the Florida Statutes, we address appellant's argument that section 775.084, Florida Statutes (1989), as amended, violates the one-subject rule....

...I, section 6. State v. Combs, 388 So.2d 1029 (Fla. 1980); Alterman Transport Lines, Inc. v. State, 405 So.2d at 461. The title of the act at issue designates it an act relating to criminal law and procedure. The first three sections of the act amend section 775.084, Florida Statutes, pertaining to habitual felony offenders; section 775.0842, Florida Statutes, pertaining to career criminal prosecutions; and section 775.0843, Florida Statutes, pertaining to policies for career criminal cases....

...Therefore, while the statute is not presently susceptible to a constitutional single subject challenge, see State v. Combs, 388 So.2d at 1030, we deem that in the narrow time frame of this case, appellant has raised a viable question concerning the legitimacy of the 1989 amendments to section 775.084, prior to their formal incorporation into the Florida Statutes. In making this determination, we are cognizant that the fourth district has held, with a citation to Burch v. State, 558 So.2d 1 (Fla. 1990), but without further discussion, that Chapter 89-280, amending section 775.084, does not violate the single subject rule of Article III, section 6, Florida Constitution. See Jamison v. State, 583 So.2d 413 (Fla. 4th DCA 1991); McCall v. State, 583 So.2d 411 (Fla. 4th DCA 1991). We find it unnecessary to address appellant's other constitutional challenges to section 775.084, since they have been considered and rejected numerous times by this court and other district courts of appeal....

...Accordingly, we reverse appellant's sentence as an habitual violent felony offender, and remand for resentencing. However, we certify the following question to the supreme court as a question of great public importance: WHETHER THE CHAPTER 89-280 AMENDMENTS TO SECTION 775.084(1)(a)1, FLORIDA STATUTES (1989), WERE UNCONSTITUTIONAL PRIOR TO THEIR RE-ENACTMENT AS PART OF THE FLORIDA STATUTES, BECAUSE IN VIOLATION OF THE SINGLE SUBJECT RULE OF THE FLORIDA CONSTITUTION....

...le by life. See §§ 782.04(3), 812.13(2)(a), 810.02(2)(b), 777.04(1), 782.04(1)(a) & 775.087(1), Fla. *734 Stat. (1997). He correctly argues that the sentencing forms reflect he was adjudicated and sentenced as both a habitual felony offender under section 775.084(4)(a), Florida Statutes (1997), and as a prison releasee reoffender under section 775.082(8)....

...tenced in accordance with sentencing scheme set out in subsections (a) through (d). Section 775.082(8)(c) provides: "Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law." (Emphasis added.) Thus, trial courts retain discretion to deviate from the prison releasee reoffender statutory sentencing scheme by imposing greater sentences under the habitual felony offender statute. In the instant case, appellant was convicted of first-degree felonies punishable by life. The prison releasee reoffender sentence for those crimes is life. See § 775.082(8)(a)2 a, Fla. Stat. (1997). Under section 775.084(4)(a)1, life and first-degree felonies are punishable by a term of life imprisonment....

...2d DCA 1993), review denied, 634 So.2d 622 (Fla. 1994). We *522 have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We quash Wilson. Wilson was charged with robbery on April 26, 1993, and two days later the State filed written notice of intent to seek enhanced penalties under section 775.084, Florida Statutes (1993), the habitual felony offender statute....

...Wilson, do you understand that the State is seeking an enhanced penalty to have you classified as an habitual offender? DEFENDANT: Yes, sir. Sentencing as an habitual offender, an alternative to sentencing under the guidelines, carries maximum sentences that are roughly double the standard statutory maximums. See § 775.084, Fla....

...At resentencing, Wilson should be given the opportunity to withdraw his plea and proceed to trial if he so desires. Should he plead nolo or guilty, the court may in its discretion sentence him under the guidelines or impose an habitual offender term if the requirements of section 775.084, Florida Statutes (1993), and Ashley are met....

...Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee. ALLEN, Judge. The appellant challenges a judgment of conviction and sentence for the offense of burglary. Among other issues, the appellant presents a constitutional challenge to section 775.084, Florida Statutes (1989), under which he was sentenced as a habitual violent felony offender....

...denied, 576 So.2d 288 (Fla. 1991). The appellant also presents the due process, double jeopardy, and ex post facto arguments which this court declined to consider in Henderson v. State, 569 So.2d 925 (Fla. 1st DCA 1990). The habitual violent felony offender provisions of section 775.084(1)(b) authorize an extended term of imprisonment for a felony which is committed within five years after a prior conviction (or release from confinement) for one or more of several enumerated violent felonies. The appellant was previously convicted of aggravated battery, which is one of the enumerated violent felonies. See § 775.084(1)(b)1.k., Fla. Stat. Although the burglary for which he is now sentenced is not one of the enumerated violent offenses, section 775.084(1)(b) does not require that the current offense be violent....

...actment, thereby offending the requirements of due process. Habitual offender provisions are generally designed to allow an enhanced penalty when new crimes are committed by recidivist offenders. See e.g., Eutsey v. State, 383 So.2d 219 (Fla. 1980). Section 775.084(1)(b) encompasses the general objective of providing additional protection to the public from certain repetitive felony offenders. See Henderson. When the statute is considered as a whole, section 775.084(1)(b) effectuates this objective by providing additional protection from repetitive felony offenders who have previously committed a violent offense....

...The decision to allow an enhanced sentence after only two felonies, and when only the prior felony is an enumerated violent offense, is a permissible legislative determination which comports with and is rationally related to this statutory purpose, so as to satisfy the requirements of due process. The appellant argues that section 775.084(1)(b) violates the constitutional protection against double jeopardy by increasing his punishment due to the nature of a prior offense. Although section 775.084(1)(b) does involve consideration of prior criminal history, it has long been established that this is a constitutionally permissible aspect of habitual offender enactments....

...nhanced punishment pertains only to the current offense and thus does not offend the protection against double jeopardy. Although Henderson notes that the issue has not been addressed with regard to the habitual violent felony offender provisions of section 775.084(1)(b), the reasoning of these cases is equally applicable to this enactment. Because the appellant's enhanced punishment is an incident of his current *1105 offense, section 775.084(1)(b) does not violate the protection against double jeopardy. The appellant's ex post facto argument is likewise unavailing. Although section 775.084(1)(b) did not include aggravated battery as an enumerated violent felony until after appellant committed this prior offense, the statute was amended to include aggravated battery before appellant committed the burglary for which he is now sentenced. A similar ex post facto challenge was rejected in Cross, because the enhanced punishment pertains only to the current offense. See also, Reynolds; Washington. Again, the reasoning of these cases is equally applicable to section 775.084(1)(b)....

...a reasonable doubt.'" 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). To qualify as an HVFO, the defendant must have previously been convicted of an enumerated felony. See § 775.084(1)(b)1., Fla....

...The defendant points out, however, that in determining whether a defendant qualifies as an HVFO, it must also be established that the defendant committed the current offense during, or within five years after completion of, the defendant's incarceration or supervision on the qualifying offense. See § 775.084(1)(b)2.a., b., Fla....

...(2002). The court must also determine that the defendant has not received a pardon on the ground of innocence for the qualifying offense, and that a conviction on the qualifying offense has not been set aside in any postconviction proceeding. See id. § 775.084(1)(b)3., 4....

...The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this paragraph. 4. A conviction of a crime necessary to the operation of this paragraph has not been set aside in any postconviction proceeding. Id. § 775.084(1)(b)2.

...ty adjudication as to both counts and will find the defendant guilty and enter an adjudication as to both counts and will find the defendant guilty and enter an adjudication as to Count I and Count II and sentence Mr. Charles Irving under Fla. Stat. 775.084(1)(b) as a habitual violent felony offender; that he has met the terms and conditions of the statute and the State proffered to that and that it was within a five year period of time of this conviction, and that indeed, there appears to be so...

...On April 29, 2005, on its own motion, the trial court amended the judgment to adjudicate Akins as an HFO. The amended judgment reflects the following: * The defendant is adjudicated a habitual felony offender and is sentenced to an extended term in accordance with the provision of 775.084(4)(a), Florida Statutes....

...Accordingly, we approve the Second District’s decision in Akins and answer the certified question in the affirmative. It is so ordered. PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur. LEWIS, J., concurs in result. CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs. .Pursuant to section 775.084, Florida Statutes (1991), a habitual felony offender is defined as: (1) As used in this act: (a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that: 1....

...With respect to appellant's first argument, the record reflects that at the sentencing hearing, the state argued that if *1037 the court found that appellant was an habitual felony offender, it was required to sentence him to life in prison because he had been convicted of a first degree felony. Section 775.084(4)(a), Florida Statutes (Supp....

...ny offender statute or the guidelines, but that "[o]nce the court decides, however, to sentence a defendant as an habitual felony offender or habitual violent felony offender, then the court is required to impose sentence in conformity with sections 775.084(4)(a) or 775.084(4)(b)." Id....

...We decline appellant's invitation and, in doing so, observe that a first degree felony, no matter what the punishment imposed by the substantive law that condemns the particular criminal conduct involved, is still a first degree felony and subject to enhancement by Section 775.084(4)(a)(1), Florida Statutes....

...State, 570 So.2d 1108 (Fla. 5th DCA 1990), the Fifth District reached the same conclusion. In that case, the appellants were convicted for kidnapping, which is also a first degree felony punishable by a sentence not exceeding life imprisonment "or as provided in ... s. 775.084." Id....

...Appellants claimed that the trial court erred in applying the habitual offender statute because life sentences are not subject to habitual offender enhancement. The court disagreed, stating that "[s]ince kidnapping is a first-degree felony, appellants' sentences therefor can be enhanced pursuant to section 775.084" but that a life felony cannot be enhanced....

...Similarly, in the case at hand, appellant was convicted of a first degree felony rather than a life felony. The maximum sentence for armed burglary is a life sentence but it is not the only sentence. Therefore, we find that the trial court properly applied section 775.084. Lastly, appellant urges that the habitual offender statute is unconstitutional because of what he perceives to be impermissibly disparate treatment among and between persons upon whom the statute operates. He argues that Section 775.084 provides for a greater penalty for an habitual felony offender convicted of a first degree felony than for an habitual violent felony offender who commits a first-degree felony because the latter may become eligible for parole while the former may not. While such an argument may have some superficial appeal, more indepth analysis persuades us that appellant's contention in this regard is flawed and thus unavailing. Section 775.084(4)(b) provides the same enhanced sentences for habitual violent felony offenders as for habitual offenders, but in addition expressly states that violent offenders are not eligible for release for specified minimum terms (15 years for first degree felonies). We acknowledge that this language can be construed to implicitly authorize release for violent felony offenders sentenced to life after they have served the minimum sentence. However, Section 775.084(4)(e) provides: The provisions of Chapter 947 shall not be applied to such person....

...to parole or gain-time, but that an habitual violent felony offender sentenced to life is entitled to some form of release after serving a minimum sentence. We disagree. Although habitual offenders serving life sentences are not eligible for parole [section 775.084(4)(e)] nor basic gain-time [Fla....

...However, because our decision may be in conflict with State v. Brown, 530 So.2d 51 (Fla. 1988), we certify the following question to the supreme court, as we did in State v. Fannin, 578 So.2d 471 (Fla. 1st DCA 1991): IS A LIFE SENTENCE PERMISSIVE OR MANDATORY UNDER THE 1988 AMENDMENT TO SECTION 775.084(4)(a)1, FLORIDA STATUTES? We also certify the following question as one of great public importance: IS A FIRST DEGREE FELONY PUNISHABLE BY A TERM OF YEARS NOT EXCEEDING LIFE IMPRISONMENT SUBJECT TO AN ENHANCED SENTENCE OF LIFE IMPRISO...

...ent as to issue two. Because of my proposed disposition in this dissent of the three points raised, I choose to reverse the order in which they are presented. Accordingly I shall first address issue three, relating to the constitutional challenge to Section 775.084(4), Florida Statutes (Supp....

...tive clemency is too tenuous a reed to support the statute against a constitutional challenge. Nevertheless, because it is our obligation to avoid constitutional rulings in cases where a statutory construction would suffice, I regard the language in section 775.084(4)(b)1., implying that a habitual violent felony offender shall be eligible for release after the service of a fifteen-year mandatory minimum sentence, as mere surplusage....

...prior to the expiration of his or her life, because an enhanced life sentence is simply that, making its recipient ineligible for parole, basic gain time, incentive gain time, or administrative gain time. I would therefore disregard that language in section 775.084(4)(b)1., implying that a defendant serving a sentence of life may be eligible for release after the *1040 service of a specified mandatory term, as inconsistent with the otherwise clearly expressed legislative intent of the statute....

...o impose an enhanced sentence of life upon one who was already subject to a maximum sentence of life imprisonment for the offense for which he or she was convicted. My conclusion is supported by the legislative history of both sections 775.08(2) and 775.084, Florida Statutes....

...g life imprisonment[.]" See also Jones v. State, 546 So.2d 1134, 1135 (Fla. 1st DCA 1989). When the 1971 legislative session enacted in the same legislative act [1] section 775.082, establishing penalties for various categories of crimes, as well as section 775.084, creating the habitual offender classifications, the trial court's discretion to impose a maximum sentence within the range specified for all noncapital felonies was left unimpaired and remained so until October 1, 1983, the effective date of guideline sentencing....

...are eligible for guideline sentencing, whereas persons such as appellant who commit first degree felonies punishable for a term of years not exceeding life imprisonment are denied such consideration upon being classified as habitual felons, because section 775.084(4)(e) excludes habitual felony sentences from guideline sentencing and other benefits....

...ars. The state, however, points out that the statute establishing appellant's underlying felony offense, armed burglary, specifically provides that the offense is punishable either by a term of years not exceeding life imprisonment or as provided in section 775.084, the habitual felony offender statute....

...lant may be habitualized and an enhanced life sentence imposed. I cannot agree that the statute's reference to the habitual offender statute is, under the circumstances, a clear reflection of legislative intent. The reference in section 810.02(2) to section 775.084 appears in all noncapital felony and misdemeanor statutes listed under Title XLVI of the Florida Statutes....

...ence to such statute is nonetheless made within each statute prescribing the penalty for life felonies. See, e.g., Section 787.01(3)(a)5., Fla. Stat. (1980) (kidnapping); Section 794.011(3), Fla. Stat. (1989) (sexual battery). Additionally, although section 775.084 had formerly provided enhanced sentencing for habitual misdemeanants, the legislature, effective October 1, 1988, deleted the provisions relating to habitual misdemeanants. See Ch. 88-131, §§ 6, 9, Laws of Fla. In the 1989 Florida Statutes, however, the legislature failed to delete references to section 775.084 in providing punishments for specified misdemeanors....

...Considering the legislature's wholesale indiscriminate reference to the habitual offender statute throughout the Florida Statutes, many of which are inapplicable, I do not consider that the state can take any comfort in the reference made in section 810.02(2) to section 775.084....

...cation of felonies that are subject to an enhanced life sentence under the habitual felony offender statute, and that it intended only for first degree felonies which are punishable for a term of years to be so enhanced. At the very minimum, because section 775.084 is a penal statute and the provisions of subsections (4)(a)1....

...1991), by which I consider myself bound, I would dissent, in that this issue appears to be controlled by the Florida Supreme Court's decision in State v. Brown, 530 So.2d 51 (Fla. 1988). Brown, never referred to by this court in its Donald opinion, construed as permissive that language of Section 775.084(4)(a)1., Florida Statutes (1985), requiring a trial judge to sentence a defendant as a habitual felony offender, "[i]n the case of a felony of the first degree, for life." Brown, 530 So.2d at 53....

...cordingly I concur in certifying the question framed in the majority's opinion. Nevertheless, I have strong reservations, in view of Brown, whether Donald was correctly decided. In saying the above, I recognize that Donald involved a construction of section 775.084(4)(b), relating to those provisions involving extended terms for habitual violent felony offenders, whereas appellant at bar was sentenced as a habitual nonviolent felon, pursuant to section 775.084(4)(a)....

...The state's argument, however, appears to be inconsistent with that made by it before the Third District in Smith v. State, 574 So.2d 1195, 1197 (Fla. 3d DCA 1991), in which the court's opinion specifically recited that the state had conceded, both in its brief and at oral argument, "that such a sentence [under section 775.084(4)(b)1] is not mandatory." Indeed, the Third District's holding, directly contrary to that of Donald, was that such a sentence was only permissive. Its decision was therefore consistent with what State v. Brown had concluded as to the statutory provisions regarding enhanced sentencing of habitual nonviolent felons. In tracing the legislative history of section 775.084(4)(a)1., in which the mandatory term "shall" first appeared in the 1975 edition of the Florida Statutes, the supreme court in Brown concluded that the legislature never inserted such language in the official Florida Statutes, but that...

...struction. See Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966). The state, however, argues that Brown has no continuing efficacy because there has been subsequent legislative activity in that the legislature, by adding subsection (4)(e) to section 775.084 in 1988, has removed habitual offender sentencing from the strictures of guideline sentencing....

...ctments of the separate subsections by authorizing trial judges the same discretion in sentencing habitual violent felons as was previously given them in sentencing habitual nonviolent felons. Indeed, the legislature's reenactment of that portion of section 775.084(4)(c) in 1988 without change, stating that "[i]f the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section[,]" reinforces this belief....

...I concur, however, with the majority in certifying the question to the Florida Supreme Court. NOTES [1] Ch. 71-136, §§ 3, 5, Laws of Fla. [2] Since 1988, of course, a guideline sentence is no longer available to a defendant who is sentenced as a habitual felony offender. See Section 775.084(4)(e), Florida Statutes (Supp....

...1st DCA 1994), in which the First District Court of Appeal certified the following question as being one of great public importance: DO THE HOLDINGS IN STATE v. BROWN, 530 So.2d 51 (FLA. 1988), AND BURDICK v. STATE, 594 So.2d 267 (FLA. 1992), AUTHORIZE THE TRIAL COURT TO SENTENCE AN HABITUAL FELONY OFFENDER UNDER SECTION 775.084(4)(a)(1), FLORIDA STATUTES (1991), TO A TERM OF FIVE YEARS IN PRISON, TO BE FOLLOWED BY LIFE ON PROBATION, WHERE AN ENHANCED SENTENCE IS FOUND TO BE NECESSARY TO PROTECT THE PUBLIC AND THE SENTENCING GUIDELINES PERMITTED RANGE IS TWELVE TO TWENTY-SEVEN YEARS? Id....

...Rinkins was convicted of attempted second-degree murder with a firearm, shooting a firearm within a building, and possession of a firearm by a convicted felon. The State filed a notice of intent to have Rinkins classified as an habitual felony offender under section 775.084, Florida Statutes (1991)....

...determined that it could not make a finding that a habitual offender sentence was not necessary for protection of the public. [1] Based on these findings, the prosecutor asked the court to sentence Rinkins to life, the maximum sentence allowed under section 775.084....

...son, the trial court had the discretion to impose a more lenient sentence. Id. The district court reasoned that once the trial court makes a finding that a defendant is a habitual offender and should be sentenced under the habitual offender statute, section 775.084(4)(e) renders the guidelines procedures inapplicable....

...encing guidelines, the trial judge must set forth written reasons for the downward departure. Id. Based upon Geohagen, we answer the certified question in the negative. If a trial judge chooses to impose a sentence more lenient than that required by section 775.084, the judge must still adhere to the sentencing guidelines and must state appropriate reasons for any downward departure from the guidelines....

...cause for resentencing at which time the judge may provide written reasons for any downward departure from the sentencing guidelines recommendation. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN, WELLS and ANSTEAD, JJ., concur. NOTES [1] Section 775.084(4)(c), Florida Statutes (1991), provides in pertinent part: If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section. [2] Section 775.084(4)(e), Florida Statutes (1991), provides that a sentence imposed under the statute is not subject to the sentencing guidelines provisions in section 921.001, Florida Statutes (1991).

...Appeal, Asst. Atty. Gen., Tallahassee, for respondent. OVERTON, Justice. We have for review Tillman v. State, 586 So.2d 1269 (Fla. 1st DCA 1991), in which the district court affirmed Tillman's sentencing as a habitual violent felony offender pursuant to section 775.084(1)(b), Florida Statutes (1989)....

...In affirming Tillman's sentence, the district court certified the following questions as being of great public importance: I. DOES IT VIOLATE A DEFENDANT'S SUBSTANTIVE DUE PROCESS RIGHTS WHEN HE IS CLASSIFIED AS A VIOLENT FELONY OFFENDER PURSUANT TO SECTION 775.084, AND THEREBY SUBJECTED TO AN EXTENDED TERM OF IMPRISONMENT, IF HE HAS BEEN CONVICTED OF AN ENUMERATED VIOLENT FELONY WITHIN THE PREVIOUS FIVE YEARS, EVEN THOUGH HIS PRESENT OFFENSE IS A NON-VIOLENT FELONY? II. DOES SECTION 775.084(1)(b) VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY INCREASING A DEFENDANT'S PUNISHMENT DUE TO THE NATURE OF A PRIOR OFFENSE? Tillman, 586 So.2d at 1269. [1] For the reasons expressed, we answer the questions in the negative and approve the decision of the district court. The statute at issue, section 775.084, Florida Statutes (1989), provides for extended prison terms for habitual felony offenders and habitual violent felony offenders....

...conviction of the last prior enumerated felony or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later[.] § 775.084(1)(a)-(b), Fla....

...al violent felony offender as a person who has " previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for" one of eleven enumerated violent felonies found in subsection (1)(b)1. § 775.084(1)(b), Fla. Stat. (1989) (emphasis added). Furthermore, in section 775.084(4)(b) the legislature expressly states that a court may sentence a habitual offender to extended periods of incarceration for a subsequent conviction of a first-, second-, or third-degree felony....

...ual offender, it would have said so. We note that under the nonviolent "habitual felony offender" provisions a defendant may receive an enhanced sentence if the defendant has "been convicted of any combination of two or more felonies in this state." § 775.084(1)(a), Fla. Stat. (1989). By imposing mandatory minimum sentences under the habitual violent felony offender provisions in section 775.084(4)(b), the legislature clearly intended to provide longer sentences for criminals who commit felonies and have previously been convicted of a violent felony....

...In a related argument, Tillman argues that his sentencing under the district *1298 court's construction of the statute violates due process because the felony for which he was being sentenced was not a violent felony. We recently held in Ross v. State, 601 So.2d 1190 (Fla. 1992), that section 775.084(1)(b) does not violate due process....

...The trial court found that this type of challenge was inappropriate in the context of a rule 3.800 motion. This appeal followed. [A] habitual offender sentence is illegal for purposes of rule 3.800(a) only if: (1) the terms or conditions of the sentence exceed those authorized by section 775.084 for the adjudicated offense, or (2) a prior offense essential to categorize the defendant as a habitual offender does not actually exist....

...The proper vehicle to challenge the State's alleged failure to properly seek habitual felony offender sentencing is a motion pursuant to Florida Rule of Criminal Procedure 3.850. Id. In this case, Cook does not deny that his habitual felony offender sentence is within the sentencing range provided by section 775.084, Florida Statutes (2001)....

...On February 14, 2000, the defendant filed a motion to correct illegal sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. In his motion, he specifically alleges that he was illegally sentenced because he was not served with a written Notice of Intent to Habitualize in accordance with section 775.084(3)(b), Florida Statutes (1993), prior to entering his plea....

...State, 760 So.2d 226 (Fla. 5th DCA 2000), that under Summers, "a mere allegation of a defective habitualization process still does not constitute a claim of an `illegal' sentence." In the instant case, the defendant alleges he did not receive the notice required under section 775.084(3)(b) and thus challenges the procedure utilized to qualify and sentence him as an habitual offender....

...titioner. Robert A. Butterworth, Attorney General and Keith S. Kromash, Assistant Attorney General, Miami, for Respondent. OVERTON, Justice. We have for review Cabal v. State, 656 So.2d 290 (Fla. 3d DCA 1995). In Cabal, the district court found that section 775.0845, Florida Statutes (1993), which imposes an enhanced penalty for wearing a mask while committing a felony, acted to reclassify the underlying felony to a distinct, separate crime of the next higher degree....

...5th DCA 1994), and Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993). [1] For the reasons expressed, we agree with the district court decisions in Woods, Archibald, and Spicer, and quash the decision of the Third District Court in this case because we find that section 775.0845, as it existed at the time of this offense, is a penalty enhancement statute rather than a substantive reclassification statute....

...Cabal was adjudicated guilty under section 812.13(2)(c), Florida Statutes (1993), which provides that the offense of robbery is a second-degree felony. In sentencing Cabal, the trial judge reclassified and scored Cabal's conviction under the sentencing guidelines as a first-degree felony under the authority of section 775.0845(4)....

...ntence, relying on the First District Court of Appeal's decision in Jennings v. State, 498 So.2d 1373 (Fla. 1st DCA 1986), but certified conflict with Woods, Archibald, and Spicer. In *317 Jennings, the First District Court of Appeal determined that section 775.0845 requires that an offense coming under the statute "shall be punishable as if it were reclassified upward as an offense of the next higher degree." 498 So.2d at 1374. On the other hand, in Woods, Archibald, and Spicer, the Fifth and Second District Courts of Appeal found that section 775.0845 does not reclassify the offense but acts only to enhance the penalty in a manner similar to the application of the habitual offender statute. [2] Section 775.0845, [3] as it existed at the time of this offense, provides in pertinent part as follows: Wearing mask while committing offense; enhanced penalties....

...(3) A felony of the third degree shall be punishable as if it were a felony of the second degree. (4) A felony of the second degree shall be punishable as if it were a felony of the first degree. (Emphasis added.) We find that the plain language of section 775.0845, which is entitled "Wearing mask while committing offense; enhanced penalties " (emphasis added), requires that the penalty be increased rather than the offense reclassified....

...Nowhere in the statute does the legislature make reference to reclassifying this conduct as a distinct, substantive offense. The statute speaks only to an increase in the penalty. As the Second District Court of Appeal correctly stated in Spicer, "[i]f the legislature had intended section 775.0845 to reclassify offenses, it would have so stated." 615 So.2d at 726....

...701, which provides in pertinent part: If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category. If the offender is sentenced under *318 section 775.084 (habitual offender), the maximum allowable sentence is increased as provided by the operation of that statute....

...Notably, the statute at issue in this case was enacted in 1981, which was two years before the enactment of the sentencing guidelines and seven years before the addition of the committee note relied on in Jennings. [4] Neither the sentencing guidelines nor the committee note in issue amended the language of section 775.0845. Further, as conceded by the State at oral argument, before the enactment of the sentencing guidelines, an offense under section 775.0845 would not have been reclassified....

...State, 576 So.2d 1310 (Fla.1991). Further, when a statute is susceptible to more than one meaning, the statute must be construed in favor of the accused. Scates v. State, 603 So.2d 504 (Fla.1992). Because the sentencing guidelines did not amend the plain language of section 775.0845 in any way, we must reject the State's argument that the committee note to the sentencing guidelines now requires reclassification under that statute....

...with some precision exactly what is prohibited. Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute. 576 So.2d at 1312 (citations omitted). Accordingly, we hold that section 775.0845, as it existed at the time of this offense, is a penalty enhancement statute rather than a substantive reclassification statute....

...ll be increased so as to be punishable as if it were the greater crime. Contrary to the rationale of the majority, I believe it is significant that subparagraph (d)(10) of Florida Rule of Criminal Procedure 3.701 was published after the enactment of section 775.0845. The rule gave effect to the obvious legislative intent of wanting to enhance the punishment for certain crimes by treating them as if they were a greater degree of offense. As interpreted by the majority, section 775.0845 will have little effect because it will only come into play in those isolated instances when there is a departure sentence or when the offender's guideline points are so great as to call for a sentence above the statutory maximum of the offense committed. I respectfully dissent. WELLS, J., concurs. NOTES [1] We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. [2] § 775.084, Fla.Stat. (1993). [3] We recognize that the legislature amended section 775.0845, effective October 1, 1995, but the amended statute is not at issue in this proceeding. Section 775.0845 was amended effective October 1, 1995, with the addition of the following language to the statute: "For purposes of sentencing under chapter 921 ... a felony offense which is reclassified under this subsection is ranked one level above the ranking under s. 921.0012 or s. 921.0013 of the offense committed." § 775.0845, Fla.Stat....

...The sequential conviction requirement found in the habitual offender statute requires that prior felonies must have "resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony. " § 775.084(5), Fla. Stat. (2002)(emphasis added). The supreme court, in Bover v. State, 797 So.2d 1246, 1250 (Fla.2001), reviewed the sequential conviction requirement and held that: The habitual offender statute, section 775.084(5), specifically provides that the court must have imposed sentence for the two prior convictions separately from each other....

...tion. The State contends this court overlooked a dispositive point of law in the previous opinion because the legislature has provided that the placing of a defendant on probation constitutes a "prior conviction" under the habitual offender statute. Section 775.084(2), Florida Statutes (2002), provides: For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction. Accordingly, the State maintains that the date Richardson was placed on probation should be considered the date of sentencing under the "sequential sentencing proceeding" requirement of section 775.084(5), which provides: *953 In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony. The State argues that this case is controlled by the plain meaning of section 775.084(2), that the holding in the instant case deprives this subsection of meaning and will lead to absurd results, and that this court should apply a rule of statutory construction whereby subsections two and five are read together to achieve a consistent whole....

...have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony," applies to any conviction to be counted as a predicate offense under section 775.084....

...There, the court stated: When it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation....

...able without that preservation. See Castor v. State, 365 So.2d 701 (Fla. 1978). Washington's conviction is therefore [5] affirmed. The lower court, after (concededly appropriately) finding that Washington was an habitual violent felony offender, see section 775.084(1)(b), Florida Statutes (1989), sentenced him to an extended term of life imprisonment without eligibility for release for fifteen years. While section 775.084(4)(b)(1) provides that such a penalty "may" be imposed under the instant circumstances, it is clear, as the use of the term "may" demands, and as the state expressly conceded both in its brief and at oral argument, that such a sentence is not mandatory. State v. Brown, 530 So.2d 51, 53 (Fla. 1988) ( a fortiori holding that section 775.084(4)( a ), providing that life sentence "shall" be imposed upon habitual felony offender, is not mandatory); State v. Padron, 571 So.2d 102 (Fla. 3d DCA 1990) (same); McNair v. State, 563 So.2d 804 (Fla. 3d DCA 1990) (same). But see Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990) (opposite result as to § 775.084(4)(b); State v....

...State, 543 So.2d 437 (Fla. 2d DCA 1989). [5] We find no merit in Washington's other claims of trial error. [6] Washington's other challenge to the sentence, which claims that an habitual offender sentence remains subject to the guidelines, is totally baseless. § 775.084(4)(e), Fla....

...Public Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard Fechter, Asst. Atty. Gen., Miami, for appellee. PER CURIAM. Defendant appeals her sentences imposed pursuant to the habitual felony offender statute, § 775.084, Fla. Stat. (1989), contending that the trial court erred in failing to follow the procedural requirements of section 775.084(1)....

...ual felony offender. The record reveals that the plea and stipulation were knowingly and voluntarily made. In Jefferson v. State, 571 So.2d 70, 71 (Fla. 1st DCA 1990), the first district held that a defendant may waive the procedural requirements of section 775.084(3)....

...These are not challenged. Power does, however, take issue with the 30 year sentence for the second degree felony, imposed by the trial court after its determination that Power is an habitual offender. Because the trial court failed to make the factual findings required by section 775.084, Florida Statutes, we must vacate the habitual offender sentence....

...COBB and PETERSON, JJ., concur. NOTES [1] A thorough review of the record reveals that of the numerous issues raised by Power, only that discussed above has any merit. [2] See Rease v. State, 493 So.2d 454 (Fla. 1986). [3] Ch. 88-131, § 6, Laws of Florida. See § 775.084(3), Fla. Stat. (Supp. 1988). [4] § 775.084(4)(a) Fla....

...Stephens' habitual felony offender (HFO) sentence. On October 25, 1996, Mr. Stephens was sentenced for armed burglary, a first-degree felony punishable by a term of years not exceeding life imprisonment. The trial court denominated Mr. Stephens a HFO pursuant to section 775.084(4)(a)(1), Florida Statutes (1995), and sentenced him to life in prison....

...Stephens or a successor judge shall reconsider the sentence must be determined by the principles set out in Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002). Petition granted. NORTHCUTT, C.J., and KELLY and LaROSE, JJ., Concur. NOTES [1] Even though Burdick interpreted section 775.084(4)(a)(1), Florida Statutes (1989), there are no relevant differences in the wording between the 1989 and the 1995 versions of this section....

...ctly according to the guidelines. In 1993, the Legislature amended the felony offender statute to exempt certain drug possessors and purchasers from habitual felony offender treatment. See Ch. 93-406, § 2, 2911, 2912-2913, Laws of Fla. (codified at § 775.084(1)(a)3., Fla....

...the first time on direct appeal. See Sanders v. State, 698 So.2d 377 (Fla. 1st DCA 1997); cf. Middleton v. State, 689 So.2d 304, 305 (Fla. 1st DCA 1997) (refusing to allow direct appeal of habitual offender sentence for possession of cocaine, which section 775.084(1)(a)3....

...According to defendant-appellant Middleton's motion, the offense for which defendant was habitualized occurred May 24, 1994. Defendant acknowledges that the State established that defendant was convicted of a qualifying offense within the previous five years, based on felony convictions entered November 30, 1992. See § 775.084(1)(a)2., Fla....

...Defendant is in error. The habitual offender statute "requires only that a defendant's last prior felony [or release from imprisonment]... be within five years of the date of the current felony offense." Clark v. State, 681 So.2d 816 (Fla. 5th DCA 1996); see § 775.084(1)(a)2., Fla....

...A review of the record in the direct appeal revealed that appellant indeed was habitualized on the basis of one prior felony conviction for armed robbery in October 1985. Since the instant armed robbery offense occurred March 27, 1989, appellant was subject to the amended section 775.084(1)(b), Florida Statutes (Supp....

...88-131, § 6, Laws of Fla. Under the amended statute, one of the criteria for classification as an habitual felony offender is that the defendant "previously has been convicted of any combination of two or more felonies in this state or other qualified offenses." Section 775.084(1)(a), Fla. Stat. (Supp. 1988). However, appellant was classified as an habitual violent felony offender, which requires only one prior conviction of an enumerated offense. See § 775.084(1)(b)1., Fla....

...§ 924(e) is a sentence enhancement provision, United States v. Sweeting, 933 F.2d 962, 967 (11th Cir. 1991), we believe the appropriate source of law in this situation is Florida law concerning sentencing enhancements for habitual felony offenders, Fla. Stat. Ann. § 775.084. See United States v....

...The Florida law in this regard is clear. For the purposes of this section,[5] the placing of a person on probation or community control without an adjudication of guilty shall be treated as a prior conviction. Fla. Stat. Ann. § 775.084(2) (West 2005 & Supp....

...by a sentence of probation as a prior conviction without regard to whether or not adjudication was withheld. In Franklin v. State, 887 So. 2d 1063, 1068 (Fla. 2004), the Florida Supreme Court distinguished the current version of Fla. Stat. § 775.084 from the previous version under which “an offense for which adjudication of guilt had been withheld would not have qualified as a predicate for habitual offender sentencing unless the subsequent offenses [sic] pending for sentencing w...

...adjudication.” The comparison drawn by the Florida Supreme Court reinforces the plain meaning drawn from the text of the statute. The statute recognizes no exception for the completion of probation before the commission of the offense for 5 Section 775.084 is titled: “Violent career criminals; habitual felony offenders and habitual violent felony offenders; three-time violent felony offenders; definitions; procedure; enhanced penalties or mandatory minimum prison terms.”...

...Frumenti was sentenced for armed burglary of a dwelling, [2] possession of a firearm by a convicted felon, [3] grand theft of a *925 firearm, [4] and aggravated assault with a firearm. [5] He was also designated a habitual felony offender pursuant to section 775.084, Florida Statutes....

...for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. (emphasis supplied). Contrary to Frumenti's position, habitual offender sentences are based solely on prior convictions. See § 775.084, Fla....

...State, 754 So.2d 149 (Fla. 2d DCA 2000). That rationale, however, is no longer viable because of changes in the habitual felony offender statute. In support of his argument, O'Neal relies on cases which involve offenses committed before 1995. The version of section 775.084, Florida Statutes (1989), in effect before 1995 [1] involved a two-step sentencing process....

...the defendant as a habitual felony offender or habitual violent felony offender, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing. § 775.084(3)(a)6, Fla. Stat. (2000) (emphasis added). Under this version of section 775.084, the trial court must make specific written or oral findings if it is not going to impose a habitual offender sentence....

...Consequently, we remand to the trial court to strike from the written sentencing order the habitual offender sanction for possession of cocaine. O'Neal's presence is not required for this ministerial function. Affirmed in part; reversed in part and remanded. CASANUEVA and SALCINES, JJ., Concur. NOTES [1] Section 775.084(4)(c), Florida Statutes (1989), provides: If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section....

...Appellant was charged with committing the offenses of false imprisonment, § 787.02, Fla. Stat. (1989), and possession of a firearm in the commission of a felony, § 790.07, Fla. Stat. (1989). The state filed notice of its intention to request the trial court to adjudicate appellant as an habitual offender, § 775.084, Fla....

...The trial court's denial of appellant's motion to withdraw his guilty plea is reversed and this matter remanded with directions that the trial court hold an evidentiary hearing on this motion. REVERSED AND REMANDED. PETERSON, J., concurs. GRIFFIN, J., dissents without opinion. NOTES [1] Section 775.084(4)(e) of the Florida Statutes (Supp....

...The next issue concerns a separate order entered in this cause wherein the trial court found: Although this defendant meets the definition of a "habitual felony offender" this Court, in considering all the evidence adduced, is of the view that the life sentence which appears to be mandated by F.S. § 775.084(4)(a) is not necessary for the protection of the public. It is, therefore, ORDERED AND ADJUDGED that the defendant, Mark Wesley Watson, is a habitual felony offender, however, the Court will not sentence the defendant under the provisions of F.S. § 775.084. In response to this order, Watson advances two arguments: first, the habitual offender statute, Section 775.084, Florida Statutes (1983), only provides for enhancement of first, second and third degree felonies and therefore it is inapplicable to a defendant, such as Watson, who is convicted of a life felony; and second, it was error for the tr...

...The second argument advanced will be treated in context under the next point. As concerns the first argument, the statute under which Watson was sentenced, Section 794.011(3), provides that the crime of sexual battery with great force is a life felony punishable as provided in Sections 775.082, 775.083 or 775.084, Florida Statutes. Section 775.084 is the habitual offender statute. Hence, this argument is *1270 without merit. While the legislature did not directly set out how a life felony is to be enhanced in Section 775.084, presumably it was their intent that it be enhanced in the same manner as a first degree felony, the highest offense covered. This of course means that if the trial court found it necessary, for the protection of the public, to sentence Watson under Section 775.084, it would have no choice but to impose a life sentence....

...The trial court acted properly in this regard, and we find no error. We next address Smith's claim that the trial court erroneously sentenced him as a habitual felony offender because the felony offender convictions offered did not satisfy the statutory requirements of section 775.084(1)(a), Fla....

...A qualified offense is defined as any offense which is substantially similar in elements and penalties to an offense in this state, which is in violation of the law of the other jurisdiction, and which is punishable by imprisonment exceeding one year. § 775.084(1)(d)....

...for the offense for which a habitual sentence is sought to be imposed. Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997). See also Hall v. State, 738 So.2d 374, 1999 WL 410314 (Fla. 1st DCA 1999); Elmer v. State, 732 So.2d 21 (Fla. 1st DCA 1999), § 775.084(5), Fla....

...(Emphasis added) [3] § 812.022(2) provides: Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen. [4] § 775.084(5), Fla....

...[2] The State and the defendant entered into a plea bargain whereby defendant would plead no contest as a habitual offender in exchange for ten-year concurrent sentences on all counts. Since defendant was being sentenced as a habitual offender, the legal maximum sentence for each third-degree felony was ten years. See § 775.084(4)(a)3, Fla....

...In 1998, defendant filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In the motion defendant asserted that all of the predicate offenses used to adjudicate him as a habitual offender had been imposed on June 30, 1992, and thus did not satisfy the sequential conviction rule. See § 775.084(5), Fla....

...In raising his claim under Rule 3.800(a), the defendant relies on Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991) (en banc), which states: [W]e conclude that a habitual offender sentence is illegal for purposes of rule 3.800(a) only if: 1) the terms or conditions of the sentence exceed those authorized by section 775.084 for the adjudicated offense, or 2) a prior offense essential to categorize the defendant as a habitual offender does not actually exist....

...State, 691 So.2d 648 (Fla. 2d DCA 1997). The logic of Judge is that the habitual offender statute increases the legal maximum term. In the present case, habitualization of defendant means that for his third-degree felonies the regular five-year maximum becomes ten. See § 775.084(c)3, Fla....

...In the case now before us, the judgments are third-degree felonies. The sentencing order reflects that the defendant was adjudicated as a habitual offender. Under the habitual offender statute, the legal maximum for a habitual offender for a third-degree felony is ten years. See § 775.084(4)(a)3, Fla....

...An evidentiary hearing would be needed where the convictions were not introduced. An evidentiary hearing would be needed in cases in which the most recent predicate offense satisfies the five-year rule only when measured from the date of release from incarceration or parole, see § 775.084(1)(a)2., (1)(b)2., Fla....

...Stat. (1993), and the record fails to establish the date of such release. An evidentiary determination may also be required in cases in which the defendant contends that a predicate offense has been set aside in postconviction proceedings. See id. § 775.084(1)(a)5., (1)(b)2....

...The word *1194 "patently" is defined as "openly, plainly or clearly." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1326 (3d ed.1992). In the present case, the sentence patently, i.e. on the face of the record, fails to comport with the limitations of section 775.084(5)....

...mendation call for a sentence other than probation or community control. [3] The court also held that upon sentencing a habitual *621 offender to community control or probation, the trial court is not required to make a specific finding, pursuant to section 775.084(4)(c), that a sentence as a habitual offender is not necessary to protect the public because "[b]y virtue of sentencing a habitual offender to a more lenient sentence [i.e., probation] than that required by section 775.084, Florida Statutes (1991) [i.e., a term of years], the judge has necessarily decided that a habitual offender sentence is not necessary." [4] 639 So.2d at 612....

...include those which are more lenient "than that recommended by the sentencing guidelines." Rinkins, 646 So.2d at 729. Not only does the reference to the sentencing guidelines appear to change the scope of those sentences that will be permitted under section 775.084, Florida Statutes (1989), it also has the effect of repealing that portion of section 775.084(4)(e) (now section 775.084(4)(h), Florida Statutes (2000)) which provides that a habitual offender sentence is not subject to the sentencing guidelines....

...However, because we affirm the habitual violent felony offender issue, the scoring error is harmless. The defendant also contends that the trial court erred in sentencing him as a habitual violent felony offender. This category was created in 1988 in section 775.084(1)(b), Florida Statutes (Supp....

...ctions was for [the statute then enumerates a list]." Under the habitual violent provision, there is no requirement that the felony has been committed in Florida. By contrast, when the 1988 legislature drafted the habitual felony offender provision (§ 775.084(1)(a)) they drafted the statute to apply where "defendant has previously been convicted of two or more felonies in this state....

...nses. In the present case the documents introduced below showed prior convictions for rape, sodomy, sexual abuse, and robbery in the State of Kentucky. These offenses all fit within the predicate acts as specified in the 1988 version of the statute, § 775.084(1)(b)....

...t Mr. Summers used a firearm in the commission of the crime. See section 775.087(1), Fla. Stat. (1999). At the December 16, 1996, sentencing the trial court also determined that Mr. Summers was an habitual offender and sentenced him accordingly. See section 775.084, Fla....

...In his 3.850 motion, Mr. Summers claims he was improperly sentenced for the second-degree murder conviction because at the time he committed the murder in January of 1994, life felonies were not subject to enhanced sentences under the habitual offender statute. See section 775.084(4)(a), Fla. Stat. (1993). It was not until 1995 that the legislature amended section 775.084 to include life felonies as crimes for which habitual offender sentences may be imposed....

...s direct appeal. This motion was denied on May 6, 1994. On February 24, 1995, the Fifth District affirmed the trial court's denial. White v. State, 651 So.2d 726 (Fla. 5th DCA 1995). Before a habitual violent felony offender sentence may be imposed, section 775.084(1)(b)(1), Florida Statutes (1989), requires a defendant to have been previously convicted of one or more of the following felonies: a....

...Aggravated assault, g. Murder, h. Manslaughter, i. Unlawful throwing, placing, or discharging of a destructive device or bomb, j. Armed burglary, or k. Aggravated battery. Petitioner specifically contends here that because the other crimes enumerated in section 775.084(1)(b)(1) are "especially" or "consciously" violent, a prior conviction for manslaughter by culpable negligence cannot qualify a defendant as a habitual violent felony offender. We disagree, and hold that a plain reading of section 775.084(1)(b)(1), and section 782.07, Florida Statutes (1995), which defines manslaughter, shows a legislative intent that a prior conviction for manslaughter by culpable negligence can qualify a defendant as a habitual violent felony offender. In section 775.084(1)(b)(1), the legislature has provided for "manslaughter" as a qualifying offense without limitation....

...cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis added). A plain reading of these two statutory provisions together (i.e., sections 775.084(1)(b)(1) and 782.07) indicate to us that the legislature intended to permit courts to habitualize defendants with a prior conviction for manslaughter by culpable negligence. In Watkins, the court concluded that since "all of the predicate offenses enumerated in section 775.084(1)(b)(1) involve intent," DUI manslaughter could not be included....

...offender statute. We agree that the trial court erred and remand for resentencing. Allen was found guilty of possession of cocaine with intent to sell, while carrying a firearm. The state filed notice of intention to seek an enhanced sentence under section 775.084, Florida Statutes (1989). The trial *171 court found that Allen met the statutory criteria for sentencing as a habitual offender under section 775.084 and checked the habitual offender section on the sentencing guidelines scoresheet. The trial court also wrote "habitual offender" in the space provided for reasons for departure from the guidelines. The trial court then sentenced Allen to forty years in state prison, followed by ten years' probation. Under section 775.084, as amended in 1988, once the court determines that a defendant has met the criteria as set forth in section 775.084(1)(a) and is a habitual offender, it must sentence the defendant to such sentence as has been designated by the legislature in section 775.084(4)(a) 1, 2, or 3....

...We affirm the conviction but reverse the sentence and remand with directions consistent herewith. Since our decision in this case and the case of Donald v. State appear to be in conflict with State v. Brown, 530 So.2d 51 (Fla. 1988), we certify the following question to the supreme court: HAS THE 1988 AMENDMENT OF SECTION 775.084, FLORIDA STATUTES, ALTERED THE SUPREME COURT'S RULING IN BROWN, HOLDING THAT THE LEGISLATURE INTENDED SENTENCING UNDER SECTION 775.084(4)(A) TO BE PERMISSIVE, RATHER THAN MANDATORY, AS STATED IN DONALD ? PARKER and PATTERSON, JJ., concur.

...ied. Washington raises three points on appeal. We affirm. Washington asserts, inter alia, that the State's notice of intent to seek a habitual felony offender sentence was a "shotgun" notice encompassing all sentencing schemes under Florida Statutes section 775.084....

...e Attorney, and hereby requests this Honorable Court to declare the above-named Defendant to be an "Habitual Felony Offender", an "Habitual Violent Felony Offender", "A Three-Time Violent Felony Offender", or a "Violent Career Criminal", pursuant to Section 775.084, Florida Statutes....

...However, this notification was accomplished by a separate notice of intent. Washington cites a Third District case in support of his contention. In State v. Bell, 747 So.2d 1028 (Fla. 3d DCA 1999), the State filed a general notice of intent to seek an enhanced sentence under section 775.084....

...at he was eligible to be sentenced as a violent career criminal. Id. On appeal, the Third District addressed the State's contention in dicta: The State failed to provide specific written notice of its intent to seek an enhanced "Gort" sentence under 775.084(3)(B)1., Florida Statutes (1997), prior to the plea. Section 775.084 contains the definitions, procedures, and sentencing penalties for three separate classifications — violent career criminals (the Gort sentencing enhancements), habitual felony offenders, and habitual violent felony offenders. For the State to give notice, as it did in this case, to the defendant that it intends to seek "imposition of an enhanced penalty pursuant to 775.084, Florida Statutes" does not give the defendant any useful notice of what particular classification, and hence *1143 penalty, she or he may be subject to upon conviction....

...endant was not given useful notice of the particular sentence the State would be seeking upon his plea of guilty. Also, the State sought to sentence the defendant as a violent career criminal, the most severe of the three classifications provided in section 775.084....

...On the other hand, in the instant case, the notice of intent to seek enhanced penalties was filed after a jury found the defendant guilty. The State sought to sentence the defendant as a habitual felony offender, the least harsh of the three classifications provided in section 775.084....

...refute any errors in that record (i.e., he was not the person convicted, he was not convicted of a certain offense, his conviction was vacated on appeal). When a "shotgun" notice informs a defendant that he is subject to all sentencing schemes under section 775.084, a defendant is given all the notice necessary to prepare for sentencing in his case....

...ctions are involved, but this distinction as recognized to be a difference between Bell and Sampson, does not apply in Washington's case. He was given a notice of intent that he would be subject to an enhanced sentence under any of the provisions of section 775.084, and it was his responsibility to prepare accordingly....

...State, 605 So.2d 994 (Fla. 5th DCA 1992). Any error in failing to make the requisite findings was harmless error. State v. Rucker, 613 So.2d 460 (Fla. 1993). Prior to appellant's plea, the State filed a notice to enhance appellant's sentence pursuant to section 775.084, Florida Statutes (1991)....

...Thus, the trial court complied with Ashley v. State, 614 So.2d 486, 487 (Fla. 1993). Appellant's last point intersects with the State's concession that the aggravated assault count, a third degree felony, should be reduced to no more than ten years. Section 784.021(2) and § 775.084(4)(a), Fla....

...Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge. WELLS, J. Hector Ubilla appeals from concurrent sentences as a violent career criminal following convictions for burglary of an unoccupied structure (count I) and grand theft (count II) in 1999. See § 775.084(1)(c), *1201 Fla....

...Stat. (1997). For the following reasons, we affirm the sentence imposed for the burglary conviction, but reverse the sentence imposed for grand theft. Following a stipulation by Ubilla that he qualified for sentencing as a violent career criminal under section 775.084(1)(c) of the Florida Statutes, Ubilla was sentenced to two concurrent fifteen year, ten year minimum mandatory sentences as a violent career criminal in this case....

...These sentences were affirmed by this court. Ubilla subsequently filed a motion to correct illegal sentence claiming that his attorney had mistakenly stipulated to his qualification as a violent career criminal, and that his prior convictions did not meet the criteria set forth in section 775.084....

...sed from prison within five years of the conviction for which he was being sentenced. Although Ubilla argued that the burglaries for which he had previously been convicted were of unoccupied structures and thus were not forcible felonies for which a section 775.084 sentence could be imposed, and that grand theft was not a crime for which a violent career criminal sentence could be imposed, the trial court again sentenced him to two concurrent fifteen year, ten year minimum mandatory violent career criminal sentences....

...ntence, he argued that he did not qualify because neither the burglary for which he was being sentenced, nor those being used to habitualize him, involved the use or threat of physical force or violence so as to qualify him for habitualization under section 775.084(1)(c)....

...While we agree that the sentence imposed for the burglary conviction is appropriate, the sentence for the grand theft conviction is not. Ubilla's argument that burglary of an unoccupied dwelling does not constitute a forcible felony that will support his sentence as a "violent career criminal" under section 775.084 of the Florida Statutes has been repeatedly rejected by this Court....

...ccupied structure. He contends that these offenses do not qualify him as a violent career criminal. The violent career criminal statute provides, in pertinent part, that qualifying offenses include "[a]ny forcible felony, as described in s. 776.08." § 775.084(1)(c)1.a., Fla....

...s, therefore, affirmed. However, the violent career criminal sentence imposed on his theft conviction must be reversed because theft does not qualify as either a predicate offense or as a primary offense for which such a sentence may be imposed. See § 775.084(1)(c)1.a.-g., Fla....

...d stalking; aircraft piracy; unlawful *1203 throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual"). Since theft is not listed in section 775.084(1)(c) as either a primary or a predicate offense, and since theft does not by definition involve the use or threat of physical force or violence, it does not qualify as either a primary or predicate qualifying offense for violent career criminal enhancement under section 775.084....

...the commission of a crime, we conclude that there was no fundamental error in this case. Finally, appellant claims that the trial court erred in imposing a mandatory life sentence for possession of a firearm by a violent career criminal pursuant to section 775.084(4)(d)1., Florida Statutes (2007), which requires that violent career criminals be sentenced to life for first-degree felonies, because sentencing should *163 be controlled by section 790.235, Florida Statutes (2007), which provides in pertinent part: (1) Any person who meets the violent career criminal criteria under s. 775.084(1)(d), regardless of whether such person is or has previously been sentenced as a violent career criminal, who owns or has in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person convicted of a violation of this section shall be sentenced to a mandatory minimum of 15 years' imprisonment; however, if the person would be sentenced to a longer term of imprisonment under s. 775.084(4)(d), the person must be sentenced under that provision. Otherwise, appellant claims that section 775.084(4)(d)1. would nullify section 790.235(1) by always requiring a life sentence. This claim is without merit. A trial court is required to impose a life sentence pursuant to section 775.084(4)(d)1. unless it finds that a violent career criminal sentence is not necessary for the protection of the public pursuant to section 775.084(4)(e), in which case the trial court has the discretion to impose a prison sentence of up to thirty years with a mandatory minimum of fifteen years pursuant to section 790.235(1). Pope v. State, 884 So.2d 328, 329 (Fla. 2d DCA 2004). Because the trial court did not find that a violent career criminal sentence was not necessary for the protection of the public, appellant was properly sentenced to life in prison pursuant to section 775.084(4)(d)1. We also reject appellant's claim that the trial court erred in sentencing appellant without a scoresheet since the Criminal Punishment Code did not apply pursuant to section 775.084(4)(h)....

...We reverse because Hudson was improperly sentenced to an extended term of imprisonment as a violent career criminal where the jury verdict did not authorize such a sentence. The trial court judge sentenced Hudson as a violent career criminal to forty years in prison with a thirty year minimum mandatory term, pursuant to section 775.084(1), Florida Statutes (1998). Section 775.084(1)(c) allows the trial court judge to sentence a defendant to a term of imprisonment as a violent career criminal if it finds that both the charged offense qualifies and at least three of the defendant's prior felonies also qualify....

...individual." Before the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the trial court could make this determination if it was established by a preponderance of the evidence. See § 775.084(3)(a), Fla....

...penter v. State, 785 So.2d 1182 (Fla.2001)(same; aggravating circumstances); Dautel v. State, 658 So.2d 88 (Fla.1995)(same; sentencing guidelines). For this reason, in turn, it cannot be a qualifying felony under the violent career criminal statute, section 775.084(1)(c) 1....

...other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084....

...lt; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. [4] 775.084 Violent career criminals; habitual felony offenders and habitual violent felony offenders; definitions; procedure; enhanced penalties.— (1) As used in this act: * * * (c) "Violent career criminal" means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(c), if it finds that: 1....

...Dwight Stewart Taylor raises numerous issues arising from his conviction for possession of a firearm by a convicted felon [1] and his sentence as a habitual felony offender. While affirming his conviction, we reverse his sentence for the reason discussed below. In 1988 the legislature amended section 775.084, the habitual offender statute, to define an habitual offender as a defendant upon whom the court may impose an extended term of imprisonment if it finds, inter alia, that the defendant has previously been convicted of two or more felonies in this state. § 775.084(1)(a), Fla....

...Pursuant to the habitual felony offender statute, appellant's sentences could have been enhanced "[i]n the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years." § 775.084(4)(b)(3), Fla....

...offense, which must run concurrently under Hale. By enhancing only one count and running it consecutively to the second count, appellant was sentenced to 12 years. This sentence exceeds the statutory maximum if both sentences had been enhanced under section 775.084 and run concurrently, or if neither had been enhanced and run consecutively....

...1st DCA 1998), and he subsequently challenged the legality of his habitual offender sentence in a postconviction motion under rule 3.800(a). When the trial court denied the motion, the defendant appealed to this court. To determine whether the sentence is legal, we must first consider the text of the applicable statute. Section 775.084(1)(a), Florida Statutes (Supp.1996) provides in material part: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that: *729 1....

...893.13 relating to the purchase or the possession of a controlled substance .... (emphasis supplied). By its terms, subsection (1)(a)3 creates two exemptions from the operation of the habitual offender statute. The first exemption pertains to the nature of the crime for which the enhanced sentence is to be imposed. Section 775.084(1)(a)3 prohibits the imposition of a habitual felony offender sentence for a violation of section 893.13 "relating to the purchase or the possession of a controlled substance." A defendant who is convicted of a drug offense falling wi...

...For example, a defendant convicted of trafficking or sale of cocaine would be eligible for a habitual felony offender sentence, because the statute forbids habitualization only if the subject offense is a violation of section 893.13 "relating to the purchase or the possession of a controlled substance." § 775.084(1)(a)3, Fla. Stat. (Supp.1996). The second exemption involves the nature of the prior convictions that may be used to establish the predicate for an enhanced sentence. In this regard, section 775.084(1)(a)3 provides that " one of the two prior felony convictions" must not be an offense relating to the purchase or the possession of a controlled substance....

...(emphasis added). It follows that if both of the predicate crimes are offenses relating to the purchase or possession of a controlled substance, the defendant would not qualify for an enhanced sentence under the habitual offender statute. However, section 775.084(1)(a)3 does not forbid the imposition of a habitual offender sentence, merely because one of the prior felonies is an offense relating to purchase or possession....

...nished twice for that one act. They argue that the first punishment was the reclassification of petit theft to felony petit theft under section 812.014(2)(d), and that the second punishment was the classification of each as a habitual offender under section 775.084, Florida Statutes (1989), based on their prior felony records....

...stantive offense. That statutory provision reads, in pertinent part, as follows: Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony in the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084....

...guilty of the substantive offense of felony petit theft as a separate felony. Based on a felony petit theft conviction as one felony, together with other previous felony convictions, each of the petitioners was sentenced as a habitual offender under section 775.084. We find that the habitualization under section 775.084 was independent of the petitioners' prior petit thefts....

...Nevertheless, based on our recent decision in State v. Johnson, 616 So.2d 1 (Fla. 1993), we find that we must remand Gayman's case for resentencing. The record reflects that Gayman was sentenced as a habitual violent felony offender under an amendment (the addition of aggravated battery) to section 775.084 contained in chapter 89-280, Laws of Florida....

...The real issue in this case is whether these alternative methods of punishment were intended also as cumulative methods of punishment. The Florida Legislature has not specifically indicated whether the two statutes were supposed to work in tandem. Compare § 812.014(2)(d), Fla. Stat. (1989), with § 775.084, Fla....

...Hegstrom, 401 So.2d 1343 (Fla. 1981) (double jeopardy protects against multiple punishments for same offense as well as from second trial for same offense), overruled on other grounds, State v. Enmund, 476 So.2d 165 (Fla. 1985). [3] § 812.014(2)(d), Fla. Stat. (1989). [4] § 775.084, Fla....

...ORY/MINIMUM PROVISIONS: CATEGORY SPECIAL PROVISION DESCRIPTION SPECIFICATION Felony Offender The defendant is adjudicated a habitual felony offender and ---- has been sentenced to an extended term in accordance with the provisions of Florida Statute 775.084(4)....

...The requisite findings by the court are set forth in a separate order stated on the record in open court. Felony Offender The defendant is adjudicated a violent career criminal and 10 YEARS MINIMUM has been sentenced to an extended term in accordance with MANDATORY the provisions of Florida Statute 775.084(4)....

...Following his unsuccessful appeal, the defendant filed a postconviction motion in the trial court under rule 3.850 of the Florida Rules of Criminal Procedure. Among other claims asserted in the motion, the defendant contended that he was sentenced as a habitual offender in violation of section 775.084(3)(a)1, Florida Statutes....

...correct the sentence under rule 3.800(b). Had the issue been preserved for review by a contemporaneous objection or rule 3.800(b) motion, it could have been presented on direct appeal. [2] Failure to order a presentence investigation as required by section 775.084(3)(a)1 is an error that has been corrected on direct appeal in other cases....

...I would reverse the order under review and remand for further proceedings. All agree that the statute unequivocally requires a sentencing court to "obtain and consider a presentence investigation [report] prior to the imposition of a sentence as a habitual felony offender," § 775.084(3)(a)1., Fla. Stat. (1997), but that this was not done in Mr. Moore's case. Whether predicate convictions exist is but one point on which the presentence investigation report is pertinent. See § 775.084(3)(a)6., Fla....

...In order for a defendant to be habitualized following a guilty or nolo plea, the defendant must be given written notice of intent to habitualize and the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization. Ashley v. State, 614 So.2d 486 (Fla. 1993); § 775.084(3)(b), Fla....

...BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] § 893.13(1)(f), Fla. Stat. (1989). [2] Section 843.01, Fla. Stat. (1989). [3] Snead's sentencing guidelines scoresheet placed him in the nonstate prison bracket. [4] If a defendant is classified as a habitual offender pursuant to section 775.084, Florida Statutes (1989), the court may impose an enhanced sentence as an alternative to guidelines sentencing. The statute authorizes extended terms of imprisonment for habitual offenders and eliminates the possibility of early release through parole or accrual of basic or meritorious gain-time or provisional credits. [5] Section 775.084(3)(b), Florida Statutes (1989), provides: Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant....

...Lee pleaded nolo contendere to the charge and accepted the prosecutor's plea offer, which included a habitual felony offender enhancement. Lee received a prison sentence of fifteen years to run concurrently with his life sentence. At the time of Lee's sentencing, section 775.084, Florida Statutes (1993), set forth the criteria for determining habitual offender status....

...or which Lee was being sentenced was committed within five years of the date of his conviction for the last prior felony or within five years of release from a prison sentence or other commitment imposed as a result of a prior felony conviction. See § 775.084(1). The trial court, relying on Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991), concluded that Lee had stipulated to his *73 habitual offender sentence as part of a plea agreement and, therefore, waived compliance with the requirements of section 775.084....

...We find Greenlee to be inapposite. In Greenlee, this court held that because the defendant "specifically stipulated that she would meet the criteria for a habitual felony offender and agreed to be sentenced as such," she waived the procedural requirements of section 775.084....

...ation, and representation by counsel, and the right to have the trial court make specific factual findings to support its conclusion that a defendant meets the habitual offender criteria. See Jefferson v. State, 571 So.2d 70, 71 (Fla. 1st DCA 1990); § 775.084(3)....

...2d DCA 1994). In Bell, this court held that the defendant was precluded from contending the trial court erred in sentencing him as a habitual offender without making specific factual findings that he had the predicate felony convictions required by section 775.084(1). Id. at 942. The defendant in Bell "expressly agreed to be sentenced as a habitual felony offender as part of his plea agreement and knowingly and voluntarily waived the procedural requirements of section 775.084." Id....

...(j) A ruling granting a motion for judgment of acquittal after a jury verdict. (k) An order denying restitution under s. 755.089. (l) An order or ruling suppressing evidence or evidence in limine at trial. (m) An order withholding adjudication of guilt in violation of s. 775.08435....

...ection to an improper court-initiated plea dialogue in this case. The State preserved only its objection to the trial court’s refusal to hold a habitual felony offender (HFO) hearing before sentencing the defendant. The State is correct that under section 775.084(4)(f), Florida Statutes (2008), “[a]t any time when it appears to the court that the defendant is eligible for [HFO] sentencing under this section, the court shall make the determination as provided in paragraph (3)(a).” § 775.084(4)(f), Fla. Stat. (2008). Section 775.084(3)(a) provides that “[i]n a separate proceeding, the court shall determine if the defendant is a habitual felony offender.” § 775.084(3)(a), Fla....

...When such a hearing is held and the defendant is found to qualify for HFO sentencing, the trial court must sentence the defendant as a habitual felony offender unless the court finds that such sentence is not necessary for the protection of the public. Such a finding must then be provided in writing. See § 775.084(3)(a), Fla. Stat. (2008). Section 775.084 requires the trial court to hold the HFO hearing, and we in no way condone a trial court’s disregard of *477 the statutory procedure....

...7 Because the sentence imposed in this case was within the range established by the sentencing scoresheet, and because the trial court was not mandated to impose an HFO sentence even if a hearing had been held and McMahon was proven to qualify, the sentence in this case is not “illegal.” Most importantly, neither section 775.084 nor section 924.07 provides for a State appeal from a sentence imposed after the trial court denies a request for an HFO hearing....

...At that time, no effort was made by the state or the trial court to invoke the habitual offender statute. At his current sentencing, however, the state invoked the habitual offender statute. The trial court, after receiving testimony, declared that the appellant was a habitual offender pursuant to section 775.084, Florida Statutes (1977)....

...In fact, the findings required to order probation are precisely opposite to the findings required to invoke the habitual offender statute. The purpose of habitualization is to protect society against habitual offenders. Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984); § 775.084(4)(a), Fla....

...In Zambuto, the defendant pled guilty, was placed on five years probation, violated it, and had his probation revoked. The state then filed a notice of intent to seek an enhanced penalty under the habitual offender statute. We held that the enhanced penalty provision of section 775.084, Florida Statute (1979) is a collateral consequence of a plea and affirmed the sentence of an enhanced penalty....

...Samuel Mitchell timely appeals his sentence as a habitual felony offender, imposed following his guilty plea and conviction for strong arm robbery. Mitchell argues that the State failed to prove that he was previously convicted of a qualifying felony for purposes of sentencing as a habitual felony offender, pursuant to section 775.084(1), Florida Statutes (1999)....

...years from the date of conviction for the defendant's last prior felony or within five years from the date of the defendant's release from prison or supervision for a prior felony offense. See Boyd v. State, 776 So.2d 317 (Fla. 4th DCA 2000) (citing § 775.084(1)(a)2.a., Fla....

...Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee. PER CURIAM. Appellant, defendant below, seeks review of his sentence as an habitual violent felony offender following his conviction of the offense of unarmed robbery. He presents two arguments: (1) that Section 775.084, Florida Statutes (1989) (the habitual offender statute) is unconstitutional; and (2) that the trial court failed to make all of the findings requisite to imposition of an habitual violent felony offender sentence. We affirm in part, reverse in part and remand. Appellant's arguments regarding the unconstitutionality of Section 775.084 have been considered and rejected in the following decisions, among a great many others: Merriweather v....

...1st DCA), review denied, 576 So.2d 284 (Fla. 1990). Accordingly, we affirm on this issue. However, because the Supreme Court has recently accepted jurisdiction in Perkins v. State, supra , we certify the following question as one of great public importance: DOES SECTION 775.084, FLORIDA STATUTES (1989), DENY EITHER DUE PROCESS OR EQUAL PROTECTION OF LAW UNDER EITHER THE FLORIDA OR THE UNITED STATES CONSTITUTION; OR VIOLATE THE DOCTRINE OF SEPARATION OF POWERS, AS SET FORTH IN THE FLORIDA CONSTITUTION? As to...

...The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this section; and 4. A conviction of a crime necessary to the operation of this section has not been set aside in any post-conviction proceeding. § 775.084(1)(b) 3....

...ears. Over defense counsel's objection, the court therefore imposed a life sentence. Defense counsel argued that in spite of the word "shall" in the statute, the cases indicate that a court could nevertheless impose any term of years up to life. See § 775.084(4)(a), Fla....

...Defense counsel responded that Johnson would have to serve life. The court doubted that DOC would require him to serve even 25 years in prison. Actually, the court failed to perceive that with an HFO life sentence defendant would not be eligible for parole. § 775.084(4)(e), Fla....

...te in effect at sentencing did not authorize HFO for life felonies). [2] Under the statute at the time this offense was committed, convictions for possession of a controlled substance alone could qualify a defendant for habitual offender sentencing. § 775.084, Fla. Stat. (1991). Now, the statute requires that at least one of the prior felony convictions be for an offense other than the purchase or possession of a controlled substance. § 775.084(1)(a)3, Fla....

...e enhanced sentence, but did not state that the thirty-year sentences were imposed on Scanes "as" a habitual felony offender. The transcript reflects: .... I declare and find the Defendant to be a habitual felony offender pursuant to Florida Statute 775.084....

...e merit. See Burnsed. Fuston was sentenced as a habitual violent felony offender in 1993. In 1988, the habitual offender statute was amended to exempt it from the guidelines. See Strickland v. State, 596 So.2d 1155, 1156 (Fla. 2d DCA 1992); see also § 775.084(4)(e) ("A sentence imposed under this section is not subject to s....

...ese authorities. According to Fuston's own motion, he pleaded nolo contendere to burglary of an occupied building. If no aggravating factors were present, that offense constitutes a second-degree felony. See § 810.02(3)(c), Fla. Stat. (1993). Under section 775.084(4)(b)(2), Florida Statutes (1993), Fuston could be sentenced as a habitual violent felony offender to thirty years in prison for the offense....

...The State of Florida alleged that on November 1, 1996, Clifton Johnson committed an aggravated battery with a deadly weapon and an attempted strong-arm *284 robbery. Johnson was convicted as charged and sentenced as a habitual violent felony offender on both counts pursuant to section 775.084, Florida Statutes (1995). Johnson appealed to the Fourth District arguing that chapter 95-182, which amended the habitual violent felony offender sentencing category incorporated into section 775.084, violated the single subject rule contained in article III, section 6 of the Florida Constitution....

...violent felony offender based on a 1994 robbery conviction. Prior to the amendments produced by chapter 95-182, robbery was one of the qualifying offenses which allowed a trial court to sentence a defendant as a habitual violent felony offender. See § 775.084(1)(b)1.c., Fla....

...Notwithstanding, Johnson argues that he was still affected by the terms of chapter 95-182 because that legislation made sentencing as a habitual violent felony offender mandatory, whereas, prior to its enactment, such sentencing was only optional. This argument is entirely without merit. Specifically, Johnson relies on section 775.084(3)(a)6., Florida Statutes (1995), which was created by chapter 95-182, in support of his argument that sentencing as a habitual violent felony offender was made mandatory by chapter 95-182. The plain language of that section, however, indicates the exact opposite. Section 775.084(3)(a)6....

...ts the criteria for a habitual felony offender or a habitual violent felony offender to imprisonment pursuant to paragraph (4)(a) or (b) unless the court finds that it is not necessary for the protection of the public. (Emphasis supplied.) Moreover, section 775.084(4)(d), Florida Statutes (1995), adds that: If the court finds, pursuant to subparagraph (3)(a)6....

...arceration "as authorized by law in addition to the minimum mandatory sentence." Also, section 775.087(2)(c), Florida Statutes, states that if the minimum mandatory term under this section exceeds the maximum sentence authorized by sections 775.082, 775.084 or the Criminal Punishment Code, then the mandatory minimum sentence must be imposed, but if the minimum mandatory term under this section is less than the sentence authorized under sections 775.082, 775.084 or the Criminal Punishment Code, then the sentence imposed "must include the mandatory minimum term of imprisonment as required in this section." Therefore, the statute reaffirms that the statutory maximum is the greater of either the minimum...

...at 292; see also State v. Waldron, 835 So.2d 1217, 1218 (Fla. 5th DCA 2003). Section 775.087(2)(c), Florida Statutes, provides: If the mandatory minimum terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by section 775.082, section 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by section 775.082, section 775.084, or the criminal Punishment Code under chapter 921, then the sentence imposed must include the mandatory minimum as required by this section....

...cessary for habitualization. Nor does the trial court have to state any set words in order to effectively impose a habitual sentence, so long as it is clear the court intends to impose such a sentence. [1] Much to the contrary of Sampson's argument, section 775.084(3)(a)6, [2] Florida Statutes, mandates an habitual sentence if the defendant meets the criminal record criteria set forth in the statute and only requires written reasons by the sentencing judge if he or she finds an habitualized sentence is not necessary for the protection of the public....

...Second, Sampson argues his habitualized sentence is improper in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi allows for habitualized sentences which are enhanced on the basis of a defendant's prior criminal record under statutes similar to section 775.084....

...tial elements of the criminal charge with competent substantial evidence. See, e.g., Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). AFFIRMED. GRIFFIN and PALMER, JJ., concur. NOTES [1] Yates v. State, 823 So.2d 273 (Fla. 5th DCA 2002). [2] Section 775.084(3)(a)6., Florida Statutes, provides: For an offense committed on or after October 1, 1995, if the state attorney pursues a habitual felony offender sanctioned or a habitual violent felony offender sanction against the defendant and th...

...Atty. Gen., Tallahassee, for respondent. PER CURIAM. We have for review Jeffries v. State, 600 So.2d 565 (Fla. 1st DCA 1992), which certified the following question of great public importance: Under the requirement of the habitual offender statute, section 775.084(1)(a)2., Florida Statutes (1988 Supp.), that the offense for which a defendant is being sentenced be committed within five years of his release from a prison sentence imposed as a result of a prior conviction, can a defendant, who is still in prison under the sentence imposed for such prior conviction at the time he commits a new offense, be sentenced as an habitual offender? Id. at 565. We rephrase the question: Under section 775.084(1)(a)2., can an incarcerated defendant be habitualized for committing an offense more than five years after the incarceration commenced? We have jurisdiction....

...In 1989, he was charged with attempted escape and possession of a weapon by a prisoner. Later, he was convicted and sentenced as an habitual offender under the statute quoted immediately below. The First District affirmed. Jeffries, 600 So.2d at 565. Section 775.084(1)(a)2., Florida Statutes (Supp....

...We do not address the other issue raised by the parties, which lies beyond the scope of the certified question. That question is answered in the negative. It is so ordered. BARKETT, C.J., and McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. OVERTON, J., dissents. NOTES [1] § 775.084(1)(b)2, Fla....

...UPCHURCH, Jr., Judge. Appellant Kurtis Smith appeals his sentence after entering nolo contendere pleas to grand theft and aggravated assault. During discovery, the state had filed notice that it intended to seek an enhanced penalty under the habitual offender act, section 775.084, Florida Statutes....

...ourt sentenced him to consecutive sentences of seven and one-half years on each charge. The written reason for departure was stated as follows: Court found defendant to be an habitual offender and imposed extended terms of imprisonment pursuant to F.S. 775.084(4) which the Court finds to be a clear and convincing reason for departure....

...This is consistent with Eutsey, wherein the court stated: It follows that the sentencing court must devise orderly procedures for identifying hearsay in the presentence report which is disputed by the defendant, which the court intends to consider in its potential 775.084 findings, and which the court finds, is subject to witness confrontation and cross-examination rights......

...When a written order does not conform to the trial court's oral pronouncement, the oral pronouncement controls. See Bogan v. State, 462 So.2d 115 (Fla. 2d DCA 1985). In its initial order denying Driver's motion, the trial court stated that Driver "was adjudged an habitual offender, and was sentenced under Florida Statutes Section 775.084(4)(a), which allows the penalty for a second-degree felony to be enhanced to a term of up to 30 years." This court reversed the trial court's order and remanded for further proceedings, explaining that the attachments to the order did not refute Driver's allegations....

...The trial court neglected to address Driver's allegation that he was not orally sentenced as a habitual offender. Based on our review of the transcript of the sentencing hearing that the trial court attached to its second order, it appears that the trial court did not sentence Driver as a habitual offender under section 775.084, Florida Statutes (1985)....

...inding that an enhanced sentence was necessary for the protection of the public from further criminal activity by appellant. Following appellant's jury trial and conviction and with due notice to appellant, the trial court held a hearing pursuant to Section 775.084, Florida Statutes (1975) to determine whether appellant should be sentenced as an habitual felony offender....

...rs in prison. *462 At no time, either at sentencing or in its written order, did the trial court make a finding that the enhanced sentence was necessary to protect the public from further criminal activity by appellant. Such a finding is mandated by Section 775.084(4)(b), Florida Statutes (1975); unless such a finding is made, an enhanced sentence may not be imposed under Section 775.084, Florida Statutes (1975). Section 775.084(4)(c), Florida Statutes (1975); see Phipps v....

...The trial court erred when it failed to make such a finding. Appellant further complains that no evidence justifying an enhanced sentence was adduced by the state, asserting that the production of such evidence in open court is a prerequisite to imposition of an enhanced sentence under Section 775.084, Florida Statutes (1975). Our sister court so held in Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976), stating at 290-291: It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.084, F.S. 1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084....

...Before COPE and GODERICH, JJ., and NESBITT, Senior Judge. GODERICH, Judge. A jury found the defendant guilty of attempted robbery and burglary of an occupied conveyance without an assault. Prior to sentencing, the State filed a notice seeking the "imposition of an enhanced penalty pursuant to [section] 775.084[,] Florida Statutes." The defendant was sentenced to thirty years as a habitual felony offender with a fifteen year minimum mandatory sentence as a prison releasee reoffender for both counts....

...3d DCA 1999), he must be resentenced under the guidelines because the State's general notice of intent to seek enhancement was deficient. We disagree. In Bell, prior to the defendant entering a plea of guilty, the State filed its notice of intent to seek enhanced penalties pursuant to section 775.084, Florida Statutes. Section 775.084 contains definitions, procedures, and sentencing penalties for three separate classifications—violent career criminals, habitual felony offenders, and habitual violent felony offenders....

...endant was not given useful notice of the particular sentence the State would be seeking upon his plea of guilty. Also, the State sought to sentence the defendant as a violent career criminal, the most severe of the three classifications provided in section 775.084....

...On the other hand, in the instant case, the notice of intent to seek enhanced penalties was filed after a jury found the defendant guilty. The State sought to sentence the defendant as a habitual felony offender, the least harsh of the three classifications provided in section 775.084....

...The defendant was sentenced to thirty years as a habitual felony offender with a fifteen year minimum mandatory sentence as a prison releasee reoffender for both counts. The maximum sentence for the third degree felony of attempted robbery is ten years as a habitual felony offender, see § 775.084(4)(a)3, Fla....

...use of a weapon is an essential element. Then, upon finding that Ellis was a habitual violent felony offender, the trial court sentenced Ellis to life imprisonment, which is permissible for first degree felonies under the habitual offender statute. § 775.084(4)(a)1, Fla....

...obbery statute and thus cannot be reclassified under section 775.087(1)). However, this error is not cognizable on appeal because the sentence of 30 years was within the range permitted for a second degree felony under the habitual offender statute, section 775.084(4)(a)2, Florida Statutes (1991), and thus the sentence is legal and not appealable....

...HARDING, Justice. We have for review Herrington v. State, 622 So.2d 1339 (Fla. 4th DCA 1993), where the district certified this question as one of great public importance: WHETHER A TRIAL COURT'S FAILURE TO MAKE THE REQUISITE STATUTORY FINDINGS UNDER SECTION 775.084(1)(a)1 AND 2 IS SUBJECT TO THE SAME HARMLESS ERROR ANALYSIS CONTAINED IN STATE V....

...We answer the certified question in the affirmative. Because ascertaining whether a criminal defendant has prior felony convictions *1079 is a ministerial determination, it is harmless error when a trial court fails to make findings of fact under sections 775.084(1)(a)1....

...The district court, relying on our decision in State v. Rucker, 613 So.2d 460 (Fla. 1993), held that the failure to make those findings was harmless error. Herrington, 622 So.2d at 1340. In Rucker we held that a trial court's failure to make findings of fact for sections 775.084(1)(a)3....

....2d at 1341. Accordingly, we approve the decision of the district court upholding Herrington's sentence as an habitual offender. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN and WELLS, JJ., and McDONALD, Senior Justice, concur. NOTES [1] Section 775.084(1)(a), Florida Statutes (1991), provides in relevant part: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that: 1....

...f which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later... . [2] Section 775.084(3)(d), Florida Statutes (1991), requires a trial judge to make findings: (3) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender....

...See Herrington v. State, 622 So.2d 1339, 1341 (Fla. 4th DCA 1993). The district court reversed the habitual offender sentences for the 1989 and 1990 charges and remanded for resentencing. Id. Those sentences are not before this Court. [4] Sections 775.084(1)(a)3....

...[5] Herrington relies on cases decided under a predecessor statute to support his argument. An earlier version of the statute required the sentencing court to "determine if it is necessary for the protection of the public to sentence the defendant to an extended term." See § 775.084(3), Fla....

...We reverse and remand for further proceedings on claim three, in which Brinson asserted his violent career criminal (VCC) sentence for robbery is illegal because the trial court improperly used a prior conviction for battery on a law enforcement officer (BOLEO) as a qualifying offense. See § 775.084(1)(d), Fla....

...Crenshaw, 792 So.2d 582 (Fla. 2d DCA 2001); Brown v. State, 789 So.2d 366 (Fla. 2d DCA 2001). The reasoning of these cases apparently served as the basis for concluding that BOLEO was a "forcible felony" and thus a qualifying offense for VCC sentencing. See § 775.084(1)(d)(1)(a), Fla....

...Sheer, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. These consolidated appeals challenge the trial court's determination that Joseph Ridley's convictions for felony petit theft [1] were subject to further enhanced penalties under the habitual offender statute, section 775.084, Florida Statutes (1995)....

...ed by consent of the parties without briefing. Prior to 1992, section 812.014(2)(d), Florida Statutes (1991), provided that sentencing for felony petit theft was governed by sections 775.082 (general criminal penalties), 775.083 (criminal fines), or 775.084 (habitual offenders), Florida Statutes (1991). Effective October 1, 1992, however, the statute was amended by chapter 92-79, § 1, Laws of Florida, and reference to the habitual offender statute, section 775.084, was deleted....

...n had been given. The defense objected to the challenge. Prior to the swearing of the jury, the defendant properly preserved his Melbourne objection. Prior to trial, the State filed a "Notice of State's Intention to Seek Enhanced Penalty pursuant to § 775.084 and Request for Order for Pre-Sentence Investigation Report" that contained a certificate of service upon defense counsel on July 14, 1998....

...wance of the strike was not clearly erroneous. THE SENTENCING ISSUE The issue presented by the state's cross-appeal is whether the trial court erred in refusing to consider whether the defendant should be sentenced as a habitual offender pursuant to section 775.084(3)(a), Florida Statutes (1997). Our analysis of this argument focuses on whether, given the history of this case, the defendant received notice of the state's intent to ask the court to sentence him as a habitual offender. Section 775.084(3)(a)2 reads as follows: Written notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant....

...On remand, the trial court will allow the state to present evidence to establish that the defendant qualifies for sentencing as a habitual felony offender. After hearing such evidence, the trial court may sentence the defendant pursuant to the applicable provisions of section 775.084, or may again sentence the defendant to a guideline sentence if it still believes such sentence to be appropriate....

...ct, [1] challenges the constitutionality of that act on multiple grounds. The first two grounds — due process and equal protection — were dealt with in our recent opinion in King v. State, 557 So.2d 899 (Fla. 5th DCA 1990). Long also contends that section 775.084 of the Habitual Felony Offender Act violates the eighth amendment to the United States Constitution, which proscribes cruel and unusual punishment....

...Additionally, the defendant complains that he was sentenced illegally because the court file did not contain a copy of the notice of the state's intent to seek to have the defendant sentenced as a habitual offender. No contention was raised below or here that notice was not sent and received. Section 775.084(3)(b), Florida Statutes (1987) only requires notice be served on defendant and his counsel....

...If the state is not filing these notices because of the absence of an express requirement in the statute, their attention is drawn to the rule. Finally, Long argues that there were no written reasons for the habitual offender determination. To the contrary, section 775.084 contains no such requirement....

...At the sentencing hearing on March 1, 1989, the trial judge received evidence of Long's prior convictions and made a finding that Long was a habitual felony offender (in open court). AFFIRMED. W. SHARP and HARRIS, JJ., concur. NOTES [1] See Ch. 88-131, § 6, Laws of Fla. eff. Oct. 1, 1988, now codified as § 775.084.

...Here, the trial court found that Ortiz’s request, made after the jury had been selected and sworn, was invoked to delay the proceedings. We find the trial court did not abuse its discretion in denying Ortiz’s request. The state filed its notice to seek habitual offender sentencing. Section 775.084(3)(a)l., Florida Statutes, sets forth the process required to impose a habitual felony offender sentence, which includes the provision that “[t]he court shall obtain and consider a presentence investigation prior to the imposition o...

...nviction, and to a consecutive sentence of life without the possibility of parole on the robbery conviction. We affirm the conviction but reverse the sentences. First, Florczak was sentenced as a violent habitual offender pursuant to Florida Statute § 775.084(4)(b) (1997). Because he was convicted of first degree felonies, the mandatory minimum aspect of his sentence for robbery with a deadly weapon under § 775.084(4)(b)(1) is 15 years....

...It, therefore, was error to specify a longer mandatory minimum in the sentence. See Gunn v. State, 641 So.2d 462, 463 (Fla. 4th DCA 1994). Second, his murder and robbery charges stemmed from a single criminal episode. Consecutive enhanced sentences may not be imposed under § 775.084 for crimes growing out of a single criminal episode....

...Webster raises eight issues on appeal, however only the two issues relating to his sentences have merit. With regard to the remaining issues, we affirm Webster's convictions without further discussion. Webster was sentenced as a habitual felony offender under section 775.084, Florida Statutes (1995), to ten years' imprisonment with a mandatory minimum of five years for each count, with the sentences to run concurrently....

...ssessed per case not per count. Fines imposed pursuant to section 775.083 are authorized when assessed "in addition to any punishment described in s. 775.082." § 775.083(1). However, there is no comparable authorization in either section 775.083 or section 775.084 that would allow a fine to be assessed in addition to punishment imposed under section 775.084, the habitual offender statute....

...cifically provides that "[a] person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082." § 775.083(1), Fla. Stat. (1989); * * * * However, nothing in section 775.084 authorizes that sentencing be imposed under that statute in addition to the punishment described in section 775.082....

...The court went on to find that a sentencing judge may impose either a habitual offender sentence or a guidelines sentence, but not both. See id. at 1140. On that basis, the trial court had no statutory authority to sentence Webster to both a habitual offender sentence under section 775.084 and a fine under section 775.083....

...3d DCA 1990); Griffin v. State, 502 So.2d 1350, 1352 (Fla. 2d DCA 1987); Scott v. State, 396 So.2d 271, 271 (Fla. 3d DCA 1981); Williams v. State, 305 So.2d 45, 46 (Fla. 1st DCA 1974). Rollins next argues that his habitual offender sentence imposed pursuant to section 775.084(1)(a), Florida Statutes (1995) was inappropriate where one of the predicate felony convictions relied upon to support the enhanced sentence was a conviction for possession *825 of cocaine pursuant to section 893.13(6)(a), Florida Statutes (1995)....

...Essentially, Rollins maintains that the habitual offender statute precludes habitualization where one of the two predicate convictions is a violation of section 893.13. We find no merit to this argument and find that Rollins has simply misconstrued section 775.084. Section 775.084(1)(a) provides in relevant part that: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that: 1....

...The underlying incidents for which Cameron was sentenced occurred on September 21, 1999. March 29, 2000, the jury entered a verdict of guilty on three counts. Sentencing was deferred to May 5, 2000 [1] , since the state had given notice of its intent to have Cameron habitualized as *747 either a VCC or HFO. § 775.084, Fla....

...bation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. § 775.084(1)(a) [2] , Fla....

...Accordingly, the state must provide record evidence of the date of the current felony offense, the date of the conviction of the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last conviction. § 775.084(3)(a)(3), Fla....

...Cameron's appeal of that sentence is also before this court. We address that sentence in a separate opinion, which is being released simultaneously with this opinion. [2] The requirements for sentencing as a Violent Career Criminal are slightly more stringent ( e.g., three or more prior convictions). § 775.084(1)(d), Fla....

...der statute. See, e.g., State v. Viele, 559 So.2d 1304 *562 (Fla. 4th DCA 1990); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). Convictions AFFIRMED; sentences VACATED; REMANDED for further proceedings. DAUKSCH and GRIFFIN, JJ., concur. NOTES [1] § 775.084, Fla. Stat. (Supp. 1988). [2] Section 775.084(1)(a), Florida Statutes (Supp. 1988) states: (1) `Habitual felony offender' means ... (a) The defendant has previously been convicted of two or more felonies in this state. [3] Section 775.084(1)(a), Florida Statutes (1989) provides: (1) `Habitual felony offender' means ......

...Gen., and James W. Rogers, Sr. Asst. Atty. Gen., Tallahassee, for respondent. PER CURIAM. We have for review Seabrook v. State, 608 So.2d 560 (Fla. 1st DCA 1992), in which the district court affirmed Seabrook's sentencing as a habitual felony offender pursuant to section 775.084, Florida Statutes (1989). The district court of appeal certified the following question as being of great public importance: DOES SECTION 775.084, FLORIDA STATUTES (1989), DENY EITHER DUE PROCESS OR EQUAL PROTECTION OF LAW UNDER EITHER THE FLORIDA OR THE UNITED STATES CONSTITUTION; OR VIOLATE THE DOCTRINE OF SEPARATION OF POWERS, AS SET FORTH IN THE FLORIDA CONSTITUTION? Seabrook, 608 So.2d at 560. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. This Court has previously held that section 775.084 does not violate due process or equal protection....

...Gen., Tampa, for appellee. SEALS, JAMES H., Associate Judge. Appellant's, Rolland Allen Burrell's, appeal of his thirty-year split sentence of seventeen years prison and thirteen years of probation, requires this court to decide whether Florida's habitual felony statute, section 775.084, Florida Statutes (1989), allows a sentencing judge to impose a hybrid sentence of prison without habitual felony offender status, followed by probation as a habitual felony offender (a sentencing technique the trial judge referred to as "habitualized probation")....

...Appellant (hereafter defendant) was charged in three separate informations with robbery and two auto thefts, which were consolidated for trial. Prior to trial the trial court timely notified the defendant that it intended to have him adjudged, if convicted, a habitual felony offender pursuant to section 775.084, Florida Statutes (1989)....

..., thereby securing his eligibility for all gain-time available to all guideline-sentenced defendants. Third, the court would have discretion to add on a period of probation which could bring the total sentence up to the maximum limit permitted under section 775.084(4)(a)2....

...a habitual felony offender, but we find error in, and therefore reverse, the sentence. This court in King v. State, 597 So.2d 309 (Fla. 2d DCA), rev. denied, 602 So.2d 942 (Fla. 1992), ruled that any defendant who qualified for habitualization under section 775.084(3), Florida Statutes, and is timely notified of same, must be adjudged a habitual felony offender or habitual violent felony offender. However, King further holds that the trial judge has no concomitant obligation to punish the habitual felon to the enhanced sentences provided in section 775.084(4), Florida Statutes. Instead the trial judge has some discretion to exercise leniency, but only in two ways: (1) by electing not to sentence the defendant as a habitual felony offender, see § 775.084(4)(c), Fla. Stat. (1989), and imposing a guideline sentence; or (2) by electing to sentence the defendant as a habitual offender, but to a term of years less than the maximums authorized under subsections 775.084(4)(a) and (b)....

...deration he bargained for with the court. The second part of the split sentence, thirteen years of probation, still carried with it the habitual offender treatment. This created a hybrid sentence that we find to be incompatible with the prescript of section 775.084(4)(e). Section 775.084(4)(e) provides in part as follows: A defendant sentenced under this section shall not be eligible for gain-time granted by the Department of Corrections except that the department may grant up to 20 days of incentive gain-time each month as provided for in s....

...tual offender while in prison, he nevertheless remains both adjudicated and sentenced as a habitual offender. The effect, then, of the clarified sentence was to grant the defendant, a sentenced habitual felon, eligibility for that gain-time which subsection 775.084(4)(e) specifically disallows....

...serve the incarcerative part of his split sentence as a habitual felony offender. We now hold that, in order to carry out the court's promise, the trial judge may not sentence the defendant as a habitual felony offender for any part of the sentence. Section 775.084(4)(e) does not permit hybrid split-sentencing of the kind employed by the trial judge....

...directions expressed in this opinion. Affirmed in part, vacated in part, and remanded for resentencing. CAMPBELL, A.C.J., and PARKER, J., concur. NOTES [1] We previously believed that the trial judge needed to use the term enhancement provisions of section 775.084(4)(a)2 to achieve 30 years of control, but we overlooked the fact that he ran the maximum sentences on three third degree felonies and one second degree felony consecutively. Therefore, he could achieve 30 years of control without applying section 775.084.

...because he felt bound by the PRR statute. See § 775.082(9)(a)3a, Fla. Stat. (2003). [3] The Legislature made express reference to the "forcible felony" statute in defining the offenses that qualify for violent career criminal (VCC) sentencing. See § 775.084(1)(d)1a, Fla....

...plea agreement in connection with his conviction for armed sale of marijuana. Appellant contends that the sentence is illegal, because it is based on a prior conviction for DUI manslaughter, which is not one of the qualifying offenses enumerated in Section 775.084(1)(b)(1), Florida Statutes (1991)....

...1986) (a trial court cannot impose an illegal sentence pursuant to a plea bargain). Accord Cribbs v. State, 599 So.2d 246, 247 (Fla. 1st DCA 1992); Thompson v. State, 599 So.2d 244, 245 (Fla. 1st DCA 1992). As to the merits of the issue, before a HVFO sentence may be imposed, section 775.084(1)(b)(1) provides that the defendant must have been previously convicted of one or more of the following felonies: *1150 a....

...Davidson, 103 Fla. 954, 958, 139 So. 177, 178 (1931); § 775.021(1), Fla. Stat. (1991) (rule of lenity). In applying the above rules of construction to the instant case, we are unable to accept the state's argument that the reference to manslaughter under section 775.084(1)(b)(1) necessarily encompasses DUI manslaughter....

...ida statutes under Section 782.07, Florida Statutes (1991), and DUI manslaughter is listed in the "State Uniform Traffic Control" chapter in Section 316.193(3), Florida Statutes (1991). Moreover, we note that all the predicate offenses enumerated in section 775.084(1)(b)(1) involve intent....

...DUI manslaughter, by virtue of the fact that the defendant is intoxicated or under the influence of intoxicants, does not require intent. As a consequence, a defendant's intoxication could negate such an intent. Thus, we conclude that DUI manslaughter is not a consciously violent type of crime like those enumerated within section 775.084(1)(b)(1). We therefore hold that because section 775.084(1)(b)(1) does not include DUI manslaughter in the list of predicate offenses necessary for imposition of a HVFO sentence, a HVFO sentence may not be imposed based on a DUI manslaughter conviction....

...The alleged temporary residence was an apartment leased by appellant's pregnant girlfriend. The State alleged appellant failed to report this temporary address on July 25, 2008, and again on October 28, 2008. Before trial, the State filed its Notice of Intent to Classify Defendant as a HVFO pursuant to section 775.084, Florida Statutes (2007)....

...from prison, appellant's failure to properly register was a non-trivial offense. b. HVFO Status/Underlying Offenses Appellant is also a HVFO, and as such the Legislature may punish appellant more severely than it punishes a first time offender. See § 775.084, Fla. Stat. (2008); see also Ewing v. California, 538 U.S. 11, 24-26, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). The express legislative intent of Florida's HVFO statute is set forth in section 775.0841, Florida Statutes (2008), which provides: The Legislature finds a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals....

...tence as a habitual offender. The issue presented is whether the trial court erred in finding appellant to be a habitual offender where all of his prior convictions were entered on the same date. We find that the sentence was imposed in violation of section 775.084(5), Florida Statutes (1993)....

...The amendment reads as follows: In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony. § 775.084(5), Fla....

...The judgments relied on by the State for habitualization were introduced into the trial court record. Among these is an adjudication of guilt for the offense of robbery imposed within five years of the offenses for which the defendant was habitualized. This qualifies defendant as a habitual violent felony offender. See § 775.084(1)(b), Fla....

...a term of incarceration. The habitual offender statute precludes using as a predicate offense an offense for which adjudication was withheld and probation imposed (unless the habitualization offense was committed during the probationary period). See § 775.084(2), Fla....

...He contends that his sentence is illegal because he was improperly classified as a HVFO, based upon three distinct claims: 1) burglary with an assault with a firearm, a life felony, was not subject to habitualization prior to the 1995 amendment to section 775.084, Florida Statutes (1993); 2) prior juvenile adjudications of delinquency cannot be used as predicate offenses; and 3) prior sentences that were all imposed on the same date do not satisfy the sequential conviction requirement of section 775.084(5)....

...See Whit-field v. Singletary, 730 So.2d 314, 315 (Fla. 3d DCA 1999). Additionally, while the sentences for the prior predicate offenses introduced into evidence by the state were all imposed on November 11, 1991, the sequential conviction requirement of section 775.084(5) is inapplicable to our analysis. Only one predicate offense was necessary for the trial court to adjudicate defendant as a habitual violent felony offender. See § 775.084(1)(b)....

...Butterworth, Atty. Gen., Carolyn J. Mosley, Tallahassee, for appellee. EN BANC JOANOS, Chief Judge. The appellant raises one issue in this appeal. Appellant complains that the trial court erred in imposing habitual felony offender sentences without finding, under section 775.084(1)(a)4., Florida Statutes (1989), that the predicate convictions required for imposition of the habitual offender sentences had not been set aside in post-conviction proceedings....

...t presented over the signature of the then governor of the state. Appellant was adjudicated to be a habitual felony offender and sentenced to consecutive five year prison sentences. *711 Our analysis starts with the habitual felony offender statute. Section 775.084 provides in pertinent part: (1) As used in this act: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that: 1....

...(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings. As noted, appellant's sole point on appeal is that the trial court failed to make the finding required by section 775.084(1)(a)4., i.e., that his prior convictions had not been set aside in any post-conviction proceedings. In our opinion, the mandate of section 775.084(1)(a) is unequivocal....

..."state, as required by statute, the findings upon which he based [the] decision to [impose an habitual offender sentence]." The supreme court rejected the State's argument that an objection was required stating: We hold that the findings required by section 775.084 are critical to the statutory scheme and enable meaningful appellate review of these types of sentencing decisions....

...Moreover, the supreme court specified that: Given this mandatory statutory duty, the trial court's failure to make such findings is appealable regardless of whether such failure is objected to at trial. Id. at 454. In this case there is no question that the trial court did not make the finding required by section 775.084(1)(a)4....

...In our opinion that is not an admission, even implicitly, that appellant qualified as an habitual offender. It is an admission that the appellant had two prior felony *712 convictions. It was not an admission that those convictions had not been set aside. Under section 775.084(1)(a) the trial court is required to make four separate findings....

...Although Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991), supports the appellant's claim of error, I would recede from Anderson, affirm the appellant's sentences, and hold that when a defendant has not asserted the affirmative defense referred to in section 775.084(1)(a)4, a trial judge does not reversibly err by failing to make a finding of fact under that subparagraph before imposing a habitual felony offender sentence. The supreme court in Parker v. State, 546 So.2d 727 (Fla. 1989), and Eutsey v. State, 383 So.2d 219, 226 (Fla. 1980), held that the findings mandated by section 775.084 must be made on the record in a reported judicial proceeding....

...The court again stressed the importance of the findings in Walker v. State, 462 So.2d 452, 454 (Fla. 1985). Interpreting Parker and Walker, we held in Anderson that a trial court committed reversible error when it failed to make the findings specified in 775.084(1)(a)3 and 4. On rehearing, the state argued that the trial court is obligated to make the section 775.084(1)(a)3 and 4 findings only where the defendant has affirmatively raised the argument that a predicate conviction has been pardoned or set aside. The state relied upon Eutsey, which held that the matters referenced in section 775.084(1)(a)3 and 4 are affirmative defenses to be raised by the defendant....

...We rejected the state's rehearing motion primarily because the statute appears to require the referenced findings in mandatory terms. In my view, Anderson is not a proper application of the statute in light of the supreme court's Eutsey decision. Simply stated, section 775.084(1)(a)3 and 4 should not be construed to require a trial judge to make findings of fact upon issues about which he has heard no testimony because the defendant never raised the matters as affirmative defenses....

...t to that assertion and he will be able to make a finding concerning whether the affirmative defense has been proved. Absent such an assertion, the record typically contains no evidence upon which the trial judge could make the findings specified in section 775.084(1)(a)3 and 4....

...Findings of fact allow the appellate court to determine whether the trial judge considered and decided each issue which was subject to proof at the sentencing hearing. But there is no need for findings relating to issues which were not subject to proof below. Because the appellant did not raise it, the section 775.084(1)(a)4 issue was not subject to proof in the trial court. Therefore, a finding of fact under the subparagraph would not aid our review of the appellant's sentences. Finally, even if the statute is construed to require a section 775.084(1)(a)4 finding under the circumstances presented here, any failure to make the finding before imposing a habitual felony offender sentence is necessarily harmless error....

...e record in this case also provides support for a finding that the appellant's conviction has not been set aside. In any event, it is clear that a contrary finding is precluded. Under these circumstances, any error in failing to make a finding under section 775.084(1)(a)4 could not have affected the trial court proceedings....

...Whitfield, 487 So.2d 1045, 1046 (Fla. 1986), stating that without the requisite statutory findings the sentence is illegal. [3] The dissent also relies on Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1986). We recede from Myers to the extent it holds that the findings set forth in section 775.084(1)(a) are not required or the failure to make them is harmless.

...We affirm the trial court's order denying Collins' claims on the armed robbery with a weapon count and the armed robbery with a firearm count. Armed robbery with a firearm is a first-degree felony punishable by life and is thus susceptible to an enhanced sentence as a habitual violent felony offender. See §§ 812.13(2)(a), 775.084(b)1, Fla....

...Affirmed in part, reversed in part, and remanded with instructions. ALTENBERND, A.C.J., and NORTHCUTT, J., Concur. NOTES [1] Klein v. State, 731 So.2d 115 (Fla. 2d DCA 1999), interprets the 1989 version of the habitual violent felony offender statute. However, section 775.084(4)(b), Florida Statutes (1989), and section 775.084(4)(b), Florida Statutes (1993), contain the same language.

...jury instructions, were not cognizable. Although the trial court’s order did not address the two claims of illegal sentence, both were without merit. In ground eight, Sims challenged his habitualization for a life felony, committed at a time when section 775.084, Florida Statutes, did not provide for habitual sentences for life felonies....

...State, 993 So.2d 117 (Fla. 4th DCA 2008); Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006). In any event, the record established that the conviction for the predicate offense itself fell within the five-year period, making proof of the release date unnecessary, see § 775.084(1)(b)2, Fla....

...Accordingly, the interests of justice require both sentences to be vacated so that the trial court can reconsider the available sentencing options. Henry v. State, 581 So.2d 928, 929 (Fla. 3d DCA 1991). The trial court found Appellant to be qualified as a habitual violent felony offender and exercised its discretion under section 775.084(4)(c) to classify and sentence him as such pursuant to section 775.084(1)(b) and (4)(b), Florida Statutes (1989)....

...ished in subsection (3), may sentence the habitual violent felony offender as follows: * * * * * * 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. Section 775.084(4)(b)(3), Florida Statutes (1989)....

...14-15, Knickerbocker, 604 So.2d at 878, and Lowe. The state asserted that the language "such offender shall not be eligible for release for 5 years" required the imposition of a 5-year minimum mandatory sentence as to Count II, and nothing less. See section 775.084(4)(b)(3), Florida Statutes (1989)....

...1992), the record is not clear as to whether the trial court based Appellant's eventual sentence on the state's arguments and the belief that it lacked any broader discretion in sentencing. Appellant and the state acknowledge that several key decisions rendered subsequent to Appellant's sentencing invoke section 775.084 and address the specific sentencing issues disputed by counsel. Those issues are 1) whether the statutory language is permissive or mandatory, 2) whether the so-called minimum mandatory provisions of section 775.084(4)(b)(1) through (4)(b)(3) must be imposed, and, 3) if the minimum mandatories must be included in a habitual violent felony offender's sentence, what considerations determine whether they are to be imposed concurrently or consecutively....

...Appellant and the state acknowledge on appeal that under the applicable version of the habitual violent offender statute, Appellant's sentence is expressly exempted from the sentencing guidelines provisions of section 921.001, Florida Statutes (1989). See Section 775.084(4)(e); Holley v....

...sheet recommendation. [citation to Branam ] Subsequent to both Appellant's sentencing and the publication of Branam and Thompson, the supreme court decided Burdick v. State, 594 So.2d 267, 271 (Fla. 1992), which holds "that sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive, not mandatory." Thus, Burdick applies equally to the habitual felony and habitual violent felony offender provisions....

...See Knickerbocker, 604 So.2d at 878; see also King, 597 So.2d at 316. In Knickerbocker, the charges against the defendant, a habitual violent felony offender, included two felonies of the first degree (kidnapping and armed burglary). The applicable provision of section 775.084(4), Florida Statutes (Supp....

...trial court, having determined to sentence Appellant as a habitual violent felony offender, has the discretion to impose a sentence of "any term of years not less than the minimum mandatory nor more than the maximum sentence provided in subsections 775.084(4)(b)(1), (2) and (3)....

...4th DCA 1993) (finding habitual violent felony offender sentencing is discretionary, so that imposition of minimum mandatory term is not required). Appellant has not supplied any authority to indicate to us that the minimum mandatory sentencing provisions of section 775.084(4)(b)(3) are merely permissive. Noting the lack of minimum mandatory provisions in the habitual felony offender provisions in section 775.084(4)(a)(1)-(3), we believe our interpretation of the minimum mandatory provisions in the habitual violent felony offender statute, section 775.084(4)(b)(1) through (4)(b)(3), as being, in fact, mandatory, is consistent with the legislative intent to distinguish habitual offenders from habitual violent offenders and to further enhance the latter's sentences....

...Accordingly, if the trial court again decides to sentence Appellant pursuant to the habitual violent felony offender provisions, the sentence must include a minimum mandatory statutory term of years. We find this interpretation comports with the legislative intent to enact section 775.084 as a sentence enhancement statute....

...nder. The jury trial requirement of Apprendi does not apply to the Florida habitual offender statute. That is so because the factual findings which the sentencing judge must make are determinations regarding the defendant's prior felony convictions. § 775.084(1)(a), Fla....

...The habitual offender statute allows the trial court the discretion to impose an ordinary, non-habitual offender sentence "[i]f the court decides that imposition of sentence under this section [the habitual offender statute] is not necessary for the protection of the public ...." § 775.084(4)(c), Fla....

...But if it is a fact for Apprendi purposes, Apprendi still does not apply. That is so because Apprendi is triggered by a "fact that increases the penalty for a crime beyond the prescribed statutory maximum...." Id. (emphasis added). The trial court's option under subsection 775.084(4)(c) to impose a non-habitual offender sentence is an option to stay within the ordinary statutory maximum, not to increase it....

...Russell, Asst. Public Defender, Daytona Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee. COWART, Judge. This case involves the relationship between the habitual offender act, section 775.084, Florida Statutes, and a guideline sentence under Florida Rule of Criminal Procedure 3.701 and section 921.001, Florida Statutes. In this case the trial court found the defendant to be an habitual felony offender. However, instead of imposing a sentence under the authority of section 775.084(4)(a), the trial court entered a sentence departing from the recommended guideline sentence giving four written reasons for his departure: (1) Defendant was found to be an habitual felony offender pursuant to F.S. 775.084; (2) Defendant was twice previously convicted of possession of illegal drugs; (3) Defendant has previously received a suspended sentence with five years probation and fine, and a term of one *897 year imprisonment, all of which have failed...

...State, 475 So.2d 1218 (Fla. 1985), has clearly disapproved of a sentence departing from the recommended guideline sentence based upon any factor which has already been weighed in arriving at the presumptive sentence. [1] Under the habitual offender act § 775.084, Fla. Stat.), a defendant's prior convictions and current conviction are the sole necessary factual basis for the determination that the defendant is an habitual offender under section 775.084(1) and (2). The only additional requirement is a finding by the trial court (by a preponderance of the evidence) that it is necessary for the protection of the public to sentence the defendant to an extended term. § 775.084(3), Fla. Stat. Therefore, this finding can be but a conclusion based solely on the defendant's prior record and current conviction. When this is the case, the finding under section 775.084(3) that the defendant is an habitual offender is not a sufficient ground for departure under Hendrix....

...a departure sentence, then it is immaterial that those reasons also support a determination of an habitual offender status except that such a determination authorizes an extended term of imprisonment thereby raising the maximum legal sentence under section 775.084(4)(a)....

...We also certify the following question to the Florida Supreme Court under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) as being a question of great public importance: Is the determination of a defendant as an habitual offender pursuant to section 775.084, Florida Statutes, a permissible reason to depart from a recommended guideline sentence where the sole factual basis for the habitual offender determination is the defendant's criminal record and current conviction which have already...

...ence as a habitual offender. 2. The two predicate felony convictions which were utilized to declare the appellant a habitual offender were entered on the same date. In Johnson, this court observed: The habitual violent felony offender designation in section 775.084 as amended in 1988 [§ 775.084(4)(b)(3), Fla....

...Pope dealt only with the sentencing guidelines in holding that if there were no valid reasons for departure from the sentencing guidelines given at the original sentencing, resentencing was required within the guidelines. Habitual offender sentencing involves a sentencing scheme separate and distinct from the guidelines. § 775.084(3)(e), Fla....

...1979); State v. Allen, 362 So.2d 10, 12 (Fla. 1978). Therefore, we affirm the conviction. The second attack on appeal concerns the trial court's failure to follow the statutory guidelines in passing an enhanced penalty sentence upon the appellant. Fla. Stat. 775.084 (1979)....

...lent career criminal to life in prison on the armed robbery.... As to the aggravated battery charge, you'll be adjudicated, sentenced to forty years in Florida State Prison with a minimum mandatory of thirty years. Record on Appeal at 390-91; accord § 775.084(4)(c), Fla....

...(1995) (setting forth permitted sentences for those qualifying as violent career criminals). However, the written sentencing order entered by the trial court indicates that Jones was sentenced on both offenses as a habitual violent felony offender under section 775.084(4)(b), Florida Statutes....

...atutes dealing with sentencing issues. Almost universally in the criminal sentencing context, "conviction" has been either defined by the Legislature or construed by the court to include no contest pleas followed by withheld adjudication. See, e.g., § 775.084(2), Fla....

...Accordingly, the trial court imposed lengthy sentences. For the events at the convenience store, the jury convicted Mr. Spivey of aggravated assault and the misdemeanor of simple battery. The trial court imposed a sentence of fifteen years' imprisonment as a violent career criminal pursuant to section 775.084(4)(c), Florida Statutes (1999), on the aggravated assault....

...years' imprisonment. Affirmed in part, reversed in part, and remanded. FULMER and SALCINES, JJ., Concur. NOTES [1] In Hale v. State, 630 So.2d 521 (Fla.1993), the supreme court held that sentences enhanced under the habitual felony offender statute, section 775.084(1)(b), Florida Statutes (1991), must run concurrently if they are imposed upon convictions arising from a single criminal episode....

...Although we have found no case specifically applying Hale in the context of violent career criminal sanctions, we find that the same principles apply. The State does not argue to the contrary. Violent career criminal sanctions appear as a separate subsection in section 775.084, which addresses habitual felony offenders and habitual violent felony offenders....

...We conclude that defendant's challenges to his convictions for aggravated assault with a firearm and aggravated battery with a firearm are without merit. The convictions are affirmed. Defendant's second point on appeal has merit. Defendant was found to be an habitual offender pursuant to section 775.084, Florida Statutes (Supp. 1988). [2] He does not challenge the validity of that finding. After the finding was made, the State argued that under the habitual offender statute, the trial court had no alternative but to sentence defendant to a life term. See § 775.084(4), Fla....

...While the record is not entirely clear, it appears that the trial court accepted the State's argument about the mandatory nature of the penalty. Defendant was sentenced to life on count II (armed burglary of an occupied dwelling) and lesser terms on the other counts. Paragraph 775.084(4)(a), Florida Statutes (Supp....

...In the case of a felony of the second degree, for a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a term of years not exceeding 10. Contrary to the State's assertion, the "shall sentence" provision of the habitual offender statute, id. § 775.084(4)(a), is permissive, not mandatory....

...der statute, the legislation did not address the "shall sentence" provision of the *930 habitual offender statute. In 1989, after Brown had been announced, the legislature amended another part of the habitual offender statute but reenacted paragraph 775.084(4)(a) — the "shall sentence" provision — without change....

...It results in a harmonious reading of the sentencing provisions of paragraphs (4)(a) (habitual felony offender) and (4)(b) (habitual violent felony offender). It is illogical to assume that the legislature intended to confer sentencing discretion in subparagraphs 775.084(4)(a)(2) and (3) ("a term of years not exceeding 30" and "a term of years not exceeding 10") and throughout paragraph 775.084(4)(b) (" may sentence the habitual violent felony offender as follows") (emphasis added), while eliminating sentencing discretion solely for habitual felony offenders convicted of first degree felonies....

...The interpretation advanced by the State would lead to one other anomaly which should be mentioned. A trial court can opt out of the habitual offender statute "[i]f the court decides that imposition of sentence under this section is not necessary for the protection of the public... ." § 775.084(4)(c) (emphasis added)....

...allahassee, Florida, for Respondent PER CURIAM. We have for review a decision passing upon the following question certified to be of great public importance: WHETHER A PRIOR CONVICTION FOR FELONY PETIT THEFT CAN BE USED AS A QUALIFYING OFFENSE UNDER SECTION 775.084, FLORIDA STATUTES....

...other qualified offense, whichever is later. 3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance. § 775.084, Fla....

...ffenses for habitualization— in the case of convictions for the purchase or possession of controlled substances— it is clear that all other felonies fall under the inclusive general rule allowing predicate use of "any" combination of felonies. See § 775.084(1)(a)3, Fla....

...Under the statutory scheme in place, therefore, it is safe to assume that the legislature did not intend that such a prohibition exist. See Capers, 678 So.2d at 332. Thus, use of felony petit theft as a predicate offense must follow the general rule under section 775.084(1)(a)1 allowing "any" felony to be used as a predicate offense....

...Defendant-appellant Horn contends that there is an incorrect calculation in his sentencing guidelines scoresheet. We need not address that claim because defendant was sentenced as a habitual offender and the guidelines scoresheet is irrelevant. See § 775.084(4)(g), Fla.Stat. (1995); McKnight v. State, 773 So.2d 577 (Fla. 3d DCA 2000). Defendant argues that his ten-year sentences exceed the legal maximum, but that is not so. Ten years is the legal maximum for a habitualized third degree felony. § 775.084(4)(a)3., Fla.Stat....

...Watson also contends, and the State concedes, that possession of cocaine and grand theft are not qualifying offenses under the Act. Accordingly, Watson's prison releasee reoffender sentences for these offenses are reversed. Third, Watson argues that he was improperly sentenced as a violent career criminal pursuant to section 775.084(1)(c), Florida Statutes (1997). The State concedes that Watson's prior convictions are not qualifying convictions for violent career criminal sentencing pursuant to section 775.084(5), Florida Statutes (1997). Therefore, Watson's violent career criminal sentences are reversed. We express no opinion as to whether Watson's prior convictions might qualify him for sentencing under the other provisions of section 775.084 upon remand....

...District Court of Appeal of Florida, Second District. February 19, 1993. Rehearing Denied March 23, 1993. PER CURIAM. Lamar Miffin appeals the summary denial of his motion to correct sentence. We affirm. *746 Miffin received an enhanced sentence under the habitual offender statute. § 775.084, Fla....

...First, the term "qualified offense," relevant to foreign predicate convictions, was expanded to include the District of Columbia, American territories, and foreign countries. Second, the definition of "habitual violent felony offender" was expanded to include persons previously convicted of aggravated battery. Third, section 775.0842, dealing with prosecution of "career criminals," was reworded consistent with these other modifications. The error described in Johnson is fundamental. However, the supreme court further stated that "the resentencing requirement will apply only to those defendants affected by the amendments to section 775.084 contained in chapter 89-280." 616 So.2d at 4....

...tes (1991), the statute applied in Gayman, had been amended. Prior to 1992, subsection 812.014(2)(d) provided that sentencing for felony petit theft was required under section 775.082 (general criminal penalties), section 775.083 (criminal fines) or section 775.084 (habitual offenders). However, effective October 1, 1992, the statute was amended by Chapter 92-79, § 1, Laws of Florida, and the reference to section 775.084 (habitual offenders) was deleted....

...tual felony offender at his original sentencing hearing; the judge then sentenced King to concurrent terms of thirty years in state prison as an habitual felon. King raises two issues, one of which is his challenge to the facial constitutionality of section 775.084, Florida Statutes (1989). Section 775.084 was held constitutional in Seabrook v....

...Thus, the trial judge, notwithstanding his determination that King was an habitual felon, was not required at the original sentencing hearing to impose a sentence of life for burglary of a dwelling with assault, and a term of years not exceeding thirty for robbery, in conformity with section 775.084(4)(a)....

...The federal Double Jeopardy Clause, applicable by virtue of the Fourteenth Amendment, also forbids double punishment for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The crimes of which King was convicted [1] were "punishable as provided in s. 775.082, s. 775.083, or s. 775.084." §§ 810.02 and 812.13, Fla....

...(1989) (emphasis supplied). Under the rule of lenity, codified as section 775.021(1), Florida Statutes (1989), "or" should be given its plain meaning and should *187 not be construed to mean "and" in this context. [2] The Sentencing Options: Section 775.082 or Section 775.084 Felonies of the second degree like the "strong arm robbery" appellant perpetrated are punishable by up to fifteen years' imprisonment under section 775.082, Florida Statutes (1989), or, as here, because King qualified as a habitual felony offender, by up to 30 years' imprisonment under section 775.084, Florida Statutes (1989)....

...3.701, 3.702, and 3.986. Unlike prisoners sentenced under the guidelines, prisoners sentenced as habitual offenders are, moreover, ineligible for parole, conditional release, or control release, and "basic gain-time" cannot foreshorten their prison terms. § 775.084(4)(e), Fla....

...1st DCA 1994); Corley v. State, 586 So.2d 432 (Fla. 1st DCA 1991). A burglary with assault is a felony of the first degree punishable by life imprisonment even under section 775.082, Florida Statutes (1989). Originally sentencing King for this offense under section 775.084, Florida Statutes (1989), might nevertheless have allowed greater protection of the public and harsher punishment of appellant, see generally United States v....

...Lopez, 706 F.2d 108, 110 (2d Cir.1983), by assuring his incarceration for a longer period. See Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA 1991), quashed in part on other grounds, 594 So.2d 267 (Fla. 1992). Unfettered by sentencing guidelines, a court imposing sentence on a habitual felony offender initially under section 775.084, Florida Statutes, is free to impose the statutory maximum. Habitual Offender Eligibility Determined Section 775.084(3), Florida Statutes (1989), prescribed the procedure for determining whether appellant qualified as a habitual felony offender, [3] on the basis of statutory criteria that do not differ in any way material to the present case from those in place today....

...The defendant has not received a pardon for any felony or other qualified *188 offense that is necessary for the operation of this section; and 4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any postconviction proceeding. § 775.084(1)(a), Fla....

...2d DCA), review denied, 602 So.2d 942 (Fla. 1992); see McKnight v. State, 616 So.2d 31 (Fla. 1993). Original Sentencing Under Section 775.082 The statutes and cases make clear nevertheless that the trial court must make a genuine choice in deciding whether or not sentencing under section 775.084 is "necessary for the protection of the public." § 775.084(4)(c), Fla. Stat. (1989); e.g., Burdick, 594 So.2d at 267; Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1993); King, 597 So.2d at 314; Donald v. State, 562 So.2d 792, 795 (Fla. 1st DCA 1990) ("court has the option, under section 775.084(4)(c), Florida Statutes (Supp....

...1991), disapproved on other grounds, State v. Washington, 594 So.2d 291 (Fla. 1992). Because the original sentencing judge concluded that no necessity for sentencing appellant as a habitual offender existed, the statute directed that "sentence ... be imposed without regard to ... section [775.084]." § 775.084(4)(c), Fla....

...nformations. Cases Nos. 89-3278-E and 89-3280-E. On that basis, he was convicted of two more felonies of the second degree, and a second felony of the first degree punishable by life. All five crimes were "punishable as provided in s. 775.082,... or s. 775.084." §§ 810.02 and 812.13, Fla....

...eously) for a single offense, only because section 775.083 specifically provides: "A person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082." Since section 775.084, Florida Statutes, contains no such language, sentencing may not be imposed under section 775.084 "in addition to ......

...775.082." [3] Until October 1, 1988, the trial judge was obliged to make an affirmative "finding that the imposition of sentence under the [habitual offender statute] is necessary for the protection of the public from further criminal activity by the defendant." § 775.084(4)(a), Fla....

...The court properly found the defendant to be a habitual felon. It then sentenced him to ten years imprisonment followed by five years probation on each count. The statutory maximum sentence for a burglary count, a second degree felony, is 30 years when a defendant is habitualized. § 775.084(4)(a)2., Fla....

...However, we agree with the defendant that the 10/5 split sentence on the grand theft and fraudulent use of a credit card counts, both third degree felonies, exceed the maximum ten years' state prison term for a habitualized defendant permitted under section 775.084(4)(a)3, Florida Statutes (1989)....

...State, 776 So.2d 317, 318 (Fla. 4th DCA 2001). To be sentenced as a violent career criminal, the State must present evidence that the defendant had been convicted as an adult three or more times for an offense enumerated in the applicable statute. See § 775.084(1)(d)1-6....

...ce. Under the law as it stood between February and May of 1983, the defendant could be given an ordinary parole-eligible sentence up to the legal maximum, or he could be sentenced under the version of the habitual offender statute then in force. See § 775.084 (1981)....

...ing statutes was legislatively overturned in 1988 by the enactment of chapter 88-131, Laws of Florida. The decision in Whitehead, upon which the defendant relies, is no longer good law. As expressed by the Florida Supreme Court, "prior to 1988, when section 775.084, Florida Statutes (1987), was amended, habitual felony offender sentences were subject to the limitations of the sentencing guidelines." State v....

...e years. [4] Toliver argues he should be resentenced pursuant to the guidelines, and not as an habitual felony *478 offender, because the trial judge sua sponte gave notice to appellant to determine if he was an habitual felony offender, pursuant to section 775.084....

...The court accepted his pleas, and set sentencing for a time after receipt of a P.S.I. Thereafter, the judge, on his own initiative, sent Toliver a notice and order for a hearing to determine if he was an habitual felony offender or an habitual violent felony offender, pursuant to section 775.084. That statute provides: 775.084 Habitual felony offenders and habitual violent felony offenders; extended terms; definitions; procedure; penalties....

...sue, the court found that Toliver is an habitual felony offender. He had at least two or more prior felony convictions, one of which was within the last five years. *480 Toliver argues that the trial judge had no power to give the notice required by section 775.084(3), which is required prior to an enhanced sentencing, pursuant to the habitual offender statute....

...r she felt was appropriate, where the prosecutor (for various or whatever reason) took no action. AFFIRMED. GOSHORN, C.J., and MUSLEH, V.J., Associate Judge, concur. NOTES [1] § 812.13, Fla. Stat. (1991). [2] § 893.13(1)(f), Fla. Stat. (1991). [3] § 775.084, Fla....

...At the sentencing hearing the trial court adopted an agreed upon three and one-half year sentence, but without enhancing the term, he sentenced Rowland as a habitual offender. Rowland contends that it was error for the trial court not to make the findings required by section 775.084(3)(d), Florida Statutes (1989). We agree. Section 775.084(3)(d) provides that the trial court "shall [find] by a preponderance of the evidence" the existence of the criteria set forth in section 775.084(1)(a)....

...Moreover, there is an absence from the record of a presentence investigation report. It is impossible to detect whether the conditions supporting habitualization existed at the time of sentencing. Because the imposition of a habitual offender sentence affects eligibility for certain gain-time, see § 775.084(4)(e), Fla. Stat. (1989), compliance with section 775.084(3)(d) is essential. Accordingly, we remand for the findings required by section 775.084....

...5 years of the date of the conviction of the defendant's last prior felony" or "within 5 years of the defendant's release ... from a prison sentence or other commitment imposed as a result of a prior conviction for a felony ..., whichever is later." § 775.084(1)(a) 2., Fla....

...rmless. The State contends Bellamy has waived this issue because he failed to object to the predicate convictions. We disagree. In a very similar case, Lowenthal v. State, 699 So.2d 319 (Fla. 2d DCA 1997), we held it was the State's obligation under section 775.084 to prove both the conviction date of the defendant's last felony and the date he was released from prison....

...Before COPE, SHEVIN, and WELLS, JJ. PER CURIAM. Juan Cala challenges his sentence as a violent career criminal arguing that the non-violent burglaries on which his sentence was based are not qualifying offenses as "described" in section 776.08 of the Florida Statutes. See § 775.084(1)(d), Fla....

...3d DCA 2003), the final clause of section 776.08 looks to the statutory elements of crimes not enumerated, not to the elements of those crimes expressly listed. Thus, a prior conviction for burglary, even for burglary of an unoccupied premises, may qualify as a predicate conviction under section 775.084....

...State, 847 So.2d 566 (Fla. 3d DCA 2003) (holding that "non-violent burglaries ... counted as qualifying offenses"); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002) (holding that non-violent burglaries could be considered *841 forcible felonies under section 775.084 as qualifying offenses); see also Spikes v. State, 851 So.2d 252 (Fla. 3d DCA 2003) (confirming that conviction for burglary of an unoccupied conveyance qualifies a defendant as a violent career criminal under section 775.084(1)(c))....

...We grant the state's motion for rehearing, withdraw our prior opinion and substitute the following opinion in its stead. Appellant seeks reversal of his sentences as a habitual violent felony offender, contending that written notice of the state's intention to seek enhancement was not served upon him as required by section 775.084(3)(b), Florida Statutes....

...me the notice was filed, the appellant was pro se. The only error the state could have made was to fail to give the appellant a copy of the notice. However, at the sentencing hearing there was no objection to any lack of notice to the appellant. [3] Section 775.084(3)(b), Florida Statutes (1989), provides: Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant....

...n, is not. [5] The statutory requirement for written notice is to insure (and offer a method of proof) that actual notice was given. In Roberts v. State, 559 So.2d 289, 291 (Fla. 2d DCA), dismissed, 564 So.2d 488 (Fla. 1990), the court stated: While section 775.084(3) does, as defendant argues, state that such notice shall be served "on the defendant and his attorney," [only the attorney was served in Roberts ] that section gives the purpose of that requirement as being "so as to allow the preparation of a submission on behalf of the defendant" in response to the notice....

...[Emphasis added.] This decision was followed by Rowe v. State, 574 So.2d 1107, 1108 (Fla. 2d DCA 1990), rev. denied, 576 So.2d 290 (Fla. 1991) in which the court held: While appellant's attorney was served with the notice that the state sought to habitualize appellant as is required by section 775.084(3)(b), that notice and the service thereon do not indicate that appellant was personally served with such notice....

...written notice for sentencing as an habitual offender was not provided to him at that time. Thus, any sentencing over the nine years to which he agreed was not noticed as required by the habitual offender statute. (emphasis added.) Id. at 441. Since section 775.084(3)(b) does not expressly exempt its application from negotiated plea cases, the Edwards court was not strictly applying the statute; it approved a habitual offender enhanced penalty based solely on the actual notice evidenced by the negotiated plea....

...DIAMANTIS, Judge, dissenting. I respectfully dissent. Appellant alleges that his sentence as an habitual violent felony offender is improper because written notice of the state's intention to seek enhancement was not served upon him as required by law. See § 775.084(3)(b), Fla....

...th written notice does not constitute reversible error in that the intent of the statute has been met, or, in the alternative, if there was error in failing to give appellant written notice, such error was harmless. I would reject these contentions. Section 775.084(3)(b) provides: Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant....

...rty. Rule 3.030(b) further provides that where service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party himself is ordered by the court. Rule 3.030 and section 775.084(3)(b) are consistent in requiring advance written notice....

...A sentence is not illegal simply because a statute was violated. See Johnson v. State, 557 So.2d 223 (Fla. 1st DCA), rev. denied, 563 So.2d 632 (Fla. 1990). It should be noted that it was the legislature — not the majority — that made the requirement that notice be written merely a procedural requirement. Section 775.084(3), Florida Statutes (1989) states: In a separate proceeding, the court shall determine if the defendant is a habitual felony offender......

...Smart was convicted of these offenses by a jury and sentenced on November 21,1985. For the robbery, he received a sentence of natural life. As part of the sentencing process, the trial court entered an order classifying Mr. Smart as a habitual offender under section 775.084, Florida Statutes (1983). Because he was classified as a habitual offender and the robbery was a first-degree felony, 1 he was eligible to receive a life sentence. See §§ 775.084(4)(a)(l), 812.13(2)(b), Fla. Stat. (1983); State v. Brown, 530 So.2d 51 (Fla. 1988) (holding that the life sentence authorized by section 775.084(4)(a)(l) is not mandatory but may be imposed if a valid ground for upward departure is provided)....

...process by which to impose such a sentence was in its infancy. The habitual offender statute that applied at the time had been enacted prior to the guidelines and had not yet been modified to account for the guidelines. See ch. 84-328, § 3. Compare § 775.084, Fla. Stat. (1983), with § 775.084, Fla....

...Thus, his upward departure sentence does not exceed the statutory maximum for that offense. Affirmed. DAVIS, C.J., and CRENSHAW, J., Concur. . The judgment describes this conviction as a first-degree life felony. This designation was not based on section 775.082(3)(b), Florida Statutes (1983), but rather on section 775.084(4)(a)(l).

...mandatory minimum sentence, and it did not create two separate sentences for the same crime. See Grant, 770 So.2d at 658-59. Using legislative intent as our guide, we conclude that the dual designation in this case is not proper. A HFO is defined in section 775.084(1)(a), Florida Statutes (1999), and a VCC is defined in subsection (d). Subsections 775.084(3)(a), (b), and (c) all require that the court make certain findings in a separate proceeding which will qualify the defendant as either a HFO, three-time violent felony offender, or a VCC....

...In contrast, in Grant, the court noted that in the PRRA the language was in the conjunctive and ordered that an offender "be punished to the fullest extent of the law and as provided in this subsection." Grant, 770 So.2d at 658 (emphasis added). The use of the disjunctive "or" in section 775.084(4) reflects a legislative intent to require the court to designate a defendant as either a HFO or a three-time violent felony offender or a VCC, but not any combination....

...d a VCC does make some difference to appellant. Therefore, the trial court must choose one or the other but not both. Unlike the PRRA, there is no mandatory duty on the court to sentence as a VCC. Compare § 775.082(9)(a)(3), Fla. Stat. (1999), with 775.084(3)(c)(5), Fla....

...'s prior convictions. Instead, upon the third or greater conviction for petit theft the trial court, in a separate proceeding, would determine the historical fact of prior convictions and questions of identity, following the procedure employed under section 775.084, Florida Statutes, where the burden of proving prior convictions is by a preponderance of evidence....

...THOMPSON, C.J., and GRIFFIN, J., concur. NOTES [1] § 812.014(3)(c), Fla. Stat. "A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in § 775.082 or § 775.083." [2] Section 775.084, Florida Statutes, defines "habitual felony offenders" and prescribes a procedure for enhanced sentencing, in pertinent part: 775.084 Habitual felony offenders and habitual violent felony offenders; extended terms; definitions; procedure; penalties.— * * * (3) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender....

...(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings. [3] In State v. Harris , although distinguishing the felony theft statute from the habitual offender statute (§ 775.084), nevertheless the Harris court approved the procedure specified in § 775.084 in proving prior petit theft convictions, requiring proof only by a preponderance of evidence....

...The habitual offender statute provides, "For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period." § 775.084(2), Fla....

...In appellant's case, there was no withholding of adjudication. Appellant was adjudicated guilty. The grand theft conviction was properly treated as a predicate offense by the trial court. The prior conviction for possession of cocaine was also properly counted as a predicate offense. See id. § 775.084(1)(a)3; Rollins v....

...§§ 782.04(1)(a); 777.04(4)(b); 775.087(1)(a); 775.082(3)(a)(3). Minimum mandatory under 10-20-life for discharging a firearm during the offense and causing great bodily harm: not less than 25 years' imprisonment, not more than life. § 775.087(2)(a)(3). Maximum HFO sentencing: Life imprisonment. § 775.084(4)(a)(1)....

...sonment. §§ 782.04(1)(a); *1292 777.04(4)(b); 775.087(1)(a); 775.082(3)(a)(3). Minimum mandatory under 10-20-life for discharging a firearm during the offense: 20 years' imprisonment. § 775.087(2)(a)(2). Maximum HFO sentencing: Life imprisonment. § 775.084(4)(a)(1)....

...e imprisonment. §§ 782.04(1)(a); 777.04(4)(b); 775.087(1)(a); 775.082(3)(a)(3). Minimum Mandatory under 10-20-life for possessing a firearm during the offense: 10 years' imprisonment. § 775.087(2)(a)(1). Maximum HFO sentencing: Life imprisonment. § 775.084(4)(a)(1)....

...The defendant is guilty of Attempted First-Degree Murder (Did not Possess or Discharge Firearm). Degree of Felony: First Degree. Maximum Guidelines Sentence: 30 years' imprisonment. §§ 782.04(1)(a); 777.04(4)(b); 775.082(3)(b). Maximum HFO sentencing: Life imprisonment. § 775.084(4)(a)(1)....

...§§ 782.04(2); 777.04(4)(c); 775.087(1)(b); 775.082(3)(b). Minimum Mandatory under 10-20-life for discharging a firearm during the offense and causing great bodily harm: not less than 25 years' imprisonment, not more than life. § 775.087(2)(a)(3). Maximum HFO sentencing: 30 years' imprisonment. § 775.084(4)(a)(2)....

...' imprisonment. §§ 782.04(2); 777.04(4)(c); 775.087(1)(b); 775.082(3)(b). Minimum Mandatory under 10-20-life for discharging a firearm during the offense: 20 years' imprisonment. § 775.087(2)(a)(2). Maximum HFO sentencing: 30 years' imprisonment. § 775.084(4)(a)(2)....

...s' imprisonment. §§ 782.04(2); 777.04(4)(c); 775.087(1)(b); 775.082(3)(b). Minimum Mandatory under 10-20-life for possessing a firearm during the offense: 10 years' imprisonment. § 775.087(2)(a)(1). Maximum HFO sentencing: 30 years' imprisonment. § 775.084(4)(a)(2)....

...The defendant is guilty of Attempted Second-Degree Murder (Did Not Possess or Discharge Firearm). Degree of Felony: Second Degree. Maximum Guidelines Sentence: 15 years' imprisonment. §§ 782.04(2); 777.04(4)(c); 775.082(3)(c). *1293 Maximum HFO sentencing: 30 years' imprisonment. § 775.084(4)(a)(2)....

...§§ 782.07(1); 777.04(4)(d); 775.087(1)(c); 775.082(3)(c). Minimum Mandatory under 10-20-life: None — attempted manslaughter does not qualify for a minimum mandatory under this statute. See Murray v. State, 491 So.2d 1120 (Fla.1986). Maximum HFO sentencing: 10 years' imprisonment. § 775.084(4)(a)(3)....

...The defendant is guilty of Attempted Voluntary Manslaughter, without a Firearm. Degree of Felony: Third Degree. Maximum Guidelines Sentence: 5 years' imprisonment. §§ 782.07(1); 777.04(4)(d); 775.082(3)(d). Maximum HFO sentencing: 10 years' imprisonment. §§ 775.084(4)(a)(3)....

...Landry, Asst. Atty. Gen., Tampa, for appellee. SCHEB, Chief Judge. The state filed six informations, each charging Kevin M. Meehan with burglary of a dwelling. The state gave Meehan notice that it would seek to have him sentenced as a habitual offender under section 775.084, Florida Statutes (1979)....

...Meehan pled nolo contendere to each charge. At the sentencing hearing, the state, relying on two previous convictions to activate the habitual offender statute, requested that the trial court enhance Meehan's sentence. Meehan's first alleged conviction was in 1972 and, under section 775.084(1)(a)2, could not be used for enhancement purposes since it had occurred more than five years prior to the commission of the felonies involved here....

...The maximum penalty he could have received on each burglary charge without enhancement was fifteen years. §§ 775.082(3)(c), 810.02, Fla. Stat. (1979). If the state had established that Meehan was a habitual offender, however, the court could have sentenced him to thirty years on each charge. § 775.084, id....

...In Eutsey the court rejected the defendant's contention that he had a right to a jury trial and that the standard of proof was beyond a reasonable doubt in establishing that enhancement of his sentence was necessary for the protection of the public. § 775.084(3), Fla....

...However, Thomas is distinguishable because defendant failed to object in this case. Moreover, it appears that at the sentencing hearing defendant waived the issue because he conceded he had the *722 requisite prior felony record for habitualization under section 775.084(1)(a)1-2, namely two or more felonies, with at least one being within five years of the pending offense....

...Defense counsel objected only to a 1982 burglary and then said defendant "agrees that in '86, he got two six-year sentences and that he's currently doing ten years." Defendant's second argument is that the trial court failed to make the findings provided for in sections 775.084(1)(a)1-4, as required by section 775.084(3). As noted above, defendant waived the section 775.084(1)(a)1-2 findings. The findings under section 775.084(1)(a)3-4 are that none of the prior qualifying felonies was either pardoned or set aside in a post-conviction proceeding....

...rather than matters required to be proved by the State. [1] Frazier v. State, 595 So.2d 131 (Fla. 2d DCA 1992) and Rowland v. State, 583 So.2d 813 (Fla. 2d DCA 1991) do not require a different result, since those cases did not specifically address the criteria under section 775.084(1)(a)3-4. We certify conflict with Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992) and Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991) (on rehearing), which ruled to the contrary on the basis that section 775.084(3)(d) requires the trial court to make findings under 775.084(1)(a)3-4....

...Kendrick, 596 So.2d 1153 (Fla. 5th DCA 1992). Defendant's fourth argument is that the trial court improperly relied upon an out-of-state conviction. We do not decide this issue because, as noted above, he waived the required statutory findings listed in section 775.084(1)(a)1-2....

...bsequently entered written sentences of thirty-years for counts one and two. The state concedes error. Therefore, we strike the written sentence of thirty-years for count one. The second issue Bond raises on appeal is that under the amended statute, section 775.084(5), Florida Statutes (1993), in effect on the day of his resentencing, he did not qualify as an habitual offender....

...The court determined that the statute was clear and unambiguous and contained no sequential conviction requirement. Id. at 24. The court opined that the legislature was the only entity that could make the change to clearly express its intent. Id. The legislature responded by amending section 775.084 to provide for sequential convictions....

...The amendment added the following: In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony. § 775.084(5), Fla.Stat....

...We affirm his conviction for possession and remand for reconsideration of that sentence in light of potential guideline implications. Affirmed in part; reversed in part, and remanded. FULMER and COVINGTON, JJ., Concur. NOTES [1] § 893.13(6)(a) and (1)(a), Fla. Stat. (1999), respectively. [2] § 775.084, Fla....

...As to his third issue, sentencing as a habitual offender, we join our sister courts in recognizing that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is not implicated when sentencing a convicted defendant as a habitual offender under section 775.084, Florida Statutes (1999)....

...However, the written order of sentence reflects a fifteen year sentence, and under the section entitled "Special Provisions," the trial court wrote that appellant must serve a minimum *905 of ten years before being released in accordance with the provisions of section 775.084(4), Florida Statutes (1991)....

...In Green, this court affirmed the defendant's conviction and adjudication as a habitual violent felony offender, but reversed the mandatory minimum provisions in the sentence. This court wrote: The written sentences each include mandatory minimum terms pursuant to the habitual offender act, section 775.084(4), Florida Statutes (1991). At sentencing, however, the trial court did not orally impose mandatory minimum terms. Because the trial court's written sentences differ from its oral pronouncements and sentencing under section 775.084(4) is discretionary and does not require the imposition of mandatory minimum terms, we reverse appellant's sentences....

...Hearns involved the imposition of a violent career criminal sentence (VCC). Under the relevant statutes, a VCC sentence is possible provided a defendant is thrice convicted of certain enumerated felonies or "`[a]ny forcible felony, as described in s. 776.08.'" Id. at 214 (quoting section 775.084(1)(d)1., Fla....

...and makes it a part hereof. 2. Because the defendant is an habitual felony offender, and Second Degree Murder with a Firearm is a life felony, the Court must impose a mandatory life sentence under Walker v. State, 473 So.2d 694 (1st DCA 1985) and F.S. 775.084(4)(a)1....

...In Walker, the defendant was found guilty of attempted second-degree murder with a firearm. Since a firearm was used, attempted second-degree murder was reclassified from a second-degree to a first-degree felony. The sentence for the first-degree felony was then enhanced to life, pursuant to the habitual offender statute. Section 775.084(4)(a)1....

...In the instant case, the defendant was convicted of second-degree murder with a firearm which, due to the use of a firearm, was reclassified from a first-degree felony to a life felony, and then calculated on the sentencing guidelines scoresheet as such. Section 775.084(4)(a) contains no provision for enhancing or making mandatory the sentence on a life felony....

...[3] We also agree with the trial court that the defendant qualifies as a habitual offender and reject his arguments to the contrary. The 5-year time period described in the habitual offender statute applies only to the most recent predicate felony. § 775.084(1)(a)2.b., Fla....

...e-year period. Middleton v. State, 721 So.2d 792, 793 (Fla. 3d DCA 1998). Further, one of the predicate offenses is allowed to be a felony conviction for "a violation of s.893.13 relating to the purchase or the possession of a controlled substance." § 775.084(1)(a)3., Fla....

...May's plea of guilty to grand theft. [2] May did not stipulate that he qualified as a habitual felony offender, so the State was required to prove that he had been convicted of two or more felonies that were sentenced separately from each other. See § 775.084(1)(a)1., (5), Fla....

...At the same time, the court adjudicated May guilty of new offenses in circuit court case number 94-16021. This was the second conviction the State introduced to prove that May qualified as a habitual felony offender in the case before us, number 95-09259. On their faces, these two convictions seem not to satisfy the section 775.084(5) requirement that the convictions be sentenced separately....

...In fact, in January 1995 May entered into a single plea agreement that resolved both cases. At the sentencing hearing, the State argued that the crimes were sentenced separately *1088 based on the original disposition of case number 93-14029 in February 1994. Section 775.084(2), Florida Statutes (1995), addresses when a withheld adjudication can be used as a predicate offense for habitual offender treatment: (2) For the purposes of this section, the placing of a person on probation without an adjudication...

...3d DCA 1995); Allen v. State, 654 So.2d 1027 (Fla. 1st DCA 1995). Consequently, the February 1994 disposition of case number 93-14209, in which the court withheld adjudication and placed May on community control, cannot be treated as a prior conviction under section 775.084....

...For habitual offender purposes, the date of conviction in that case was February 23, 1995, the same date as the conviction in case number 94-16021. That being so, these two convictions were insufficient to support a habitual offender sentence because they were not sentenced separately. § 775.084(5)....

...Before SCHWARTZ, C.J., and GODERICH, J., and NESBITT, Senior Judge. PER CURIAM. At the outset we reject the appellant's argument that the "burglary" enumerated in Section 776.08, Florida Statutes (2000), does not qualify as a "forcible felony" and therefore, it does qualify the appellant for sentencing under Section 775.084(1)(d), Florida Statutes (2000)....

...We remand this matter for resentencing because, as the State concedes, the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established. The trial court actually had discretion, per Section 775.084(4)(d), Florida Statutes (2000), to determine whether the Gort classification, and enhanced sentence, is necessary for the protection of the public....

...During sentencing, the trial judge relied on a DOC release-date letter, which indicated that Mr. Yisrael committed the target offenses within five or fewer years of having been released for his predicate felonies. Based on this letter, Yisrael qualified as an HVFO under section 775.084, Florida Statutes (2001)....

...(2004) ("Except as provided by statute, hearsay evidence is inadmissible."); Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997) ("[T]he state must furnish proof of ... the date that the defendant was released from prison imposed for the last felony conviction...."); § 775.084(3)(a)(4), Fla....

...WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. NOTES [1] Mr. Yisrael committed the target offenses on February 21, 2001. [2] Yisrael was convicted of arson and robbery on July 10, 1992 (both of which are predicate felonies under section 775.084(1)(b)(1), Florida Statutes (2001)), and according to the DOC letter, the State released him on April 8, 1998, after Yisrael served sentences for those offenses. Yisrael committed his current cocaine-trafficking and felon-in-possession offenses on February 21, 2001, nearly three years after having been released for his 1992 felony convictions. Cf. § 775.084(1)(b)(2)(b), Fla....

...ed *295 into evidence at the sentencing hearing. It is permissible for a trial court to take judicial notice of its own files, but the trial judge has to put such evidence in the record of each case when sentencing a defendant as an HFO and PRR. See § 775.084(1)(a)2.a., Fla....

...session of drug paraphernalia. At sentencing, he was determined to be a habitual felony offender and sentenced to twelve years imprisonment. Williams first contends that his sentence as a habitual felony offender is not authorized by Florida Statute § 775.084(1)(a), (3) (1993) because that section does not permit a violation of Florida Statute § 893.13 to serve as a predicate conviction. Florida Statute § 775.084(1)(a), (3) states that "[t]he felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s....

...893.13 relating to the purchase or the possession of a controlled substance; ...." Williams asserts that the words purchase or possession in that section merely serve to generally describe Florida Statute § 893.13 and do not limit the application of § 775.084(1)(a), (3) to only purchase or possession offenses. We do not agree. The Fifth District has applied section 775.084(1)(a), (3), Florida Statutes (1993) in this context to only purchase or possession offenses....

...es. Appellant contends he should not have been sentenced as an habitual felony offender, because his North Carolina conviction did not constitute a valid prior conviction at the time the sentence was imposed. We agree. The habitual offender statute, section 775.084, Florida Statutes, was amended in 1989, to authorize classification as an habitual felon for two prior felonies committed in this state or qualified offenses of any other jurisdiction. [1] Under the pre-amended version of the statute, habitual felony offender sentencing required an initial finding that the "defendant has previously been convicted of two or more felonies in this state." See § 775.084(1)(a)1, Fla....

...sentencing was imposed. See Johnson v. State, 589 So.2d 1370 (Fla. 1st DCA 1991), review pending, S.Ct. No. 79, 204. In Johnson, which was decided after the sentencing in this case, the court held that Chapter 89-280, Laws of Florida, which amended section 775.084, violated the single subject rule of the Florida Constitution....

...The convictions relied upon for imposition of habitual felony offender sentencing were the 1989 Florida conviction and the 1976 North Carolina conviction. Since these prior convictions did not meet the threshold requirement of two or more previous felony convictions in this state, see § 775.084(1)(a)1, Fla....

...pose an illegal sentence. Larson v. State, 572 So.2d 1368, 1370 (Fla. 1991). Basilisco was an appeal from denial of a motion for post-conviction relief, in which Basilisco alleged the trial court failed to *733 make the findings required by sections 775.084(1)(a) and 775.084(3)(d), Florida Statutes (1989). The opinion relied upon the holding in Caristi v. State, 578 So.2d 769, 774 (Fla. 1st DCA 1991), that a defendant's knowing waiver of the procedural rights available under section 775.084, by entering into a plea agreement for an habitual offender sentence, precludes post-conviction relief for failure to follow the requirements of the statute....

...atisfy the statutory criteria. In contrast, this case concerns the legality of habitual offender sentencing. The trial court's findings in this case establish clearly that appellant does not qualify as an habitual felon under the pre-1989 version of section 775.084. As we did in Johnson and Claybourne, we certify the following question to the Florida Supreme Court as a question of great public importance: WHETHER THE CHAPTER 89-280 AMENDMENTS TO SECTION 775.084, FLORIDA STATUTES (SUPP....

...LE SUBJECT RULE OF THE FLORIDA CONSTITUTION. Accordingly, appellant's habitual felony offender sentences are reversed, and the cause is remanded for resentencing. The state's motion to dismiss is denied. SHIVERS and WIGGINTON, JJ., concur. NOTES [1] § 775.084(1)(a), Fla....

...d by his case. Collins, in a pro se brief, contended that his habitual felony offender sentence was unlawful because the evidence presented by the State at sentencing was insufficient to demonstrate that his prior convictions met the requirements of section 775.084(5), Florida Statutes (2001), which provides that "[i]n order to be counted as a prior felony for purposes of [habitual offender] sentencing ......

...is to be counted as a prior felony." Collins acknowledged that the State had proven that he had at least one prior felony conviction but claimed that the State had failed to demonstrate a second separately sentenced felony conviction as required by section 775.084(5)....

...The State concedes that where probation was imposed and subsequently revoked with the imposition of a prison sentence, the date of the original imposition of probation is the date that *594 must be used in determining whether the offense was separately sentenced under section 775.084(5)....

...Public Defender, for appellant. Robert A. Butterworth, Atty. Gen., William A. Hatch, Asst. Atty. Gen., for appellee. PER CURIAM. Appellant, Fred D. Parrish, pled nolo contendere to a July 12, 1989, robbery. He was sentenced as a habitual felony offender under section 775.084, Florida Statutes (Supp....

...The state concedes error on this point, and we agree that appellant was improperly classified as a habitual offender. To be deemed a habitual felony offender, the 1988 habitual offender statute necessitates an initial finding that the defendant has "previously been convicted of two or more felonies in this state." § 775.084(1)(a)1, Fla....

...e judge necessarily makes such a decision by virtue of sentencing an habitual offender to a more lenient sentence than that required by the habitual felon statute. King v. State, 681 So.2d 1136, 1138-39 (Fla. 1996) (citations and footnotes omitted). Section 775.084(4)(d), Florida Statutes (1995), provides that where a court decides that imposition of a sentence under the habitual offender statute is not necessary, sentence shall be imposed without regard to the habitual *352 offender statute....

...[and] state appropriate reasons for any downward departure from the sentencing guidelines"). In this case, the court sentenced Kennedy to ten years, the maximum imprisonment allowed for a third degree felony under the habitual offender statute. See Fla. Stat. § 775.084(4)(a)(3)....

...der sanctions, it necessarily found that the imposition of an enhanced sentence was "not necessary for the protection of the public." See Geohagen v. State, 639 So.2d at 612; Simon v. State, 684 So.2d 263, 264 (Fla. 4th DCA 1996) (quoting Fla. Stat. § 775.084(4)(c))....

...Criminal Procedure 3.800(a). Because the sentence imposed on Floyd exceeds the statutory maximum, we reverse. Floyd pleaded guilty to trafficking in cocaine in violation of section 893.135(1)(b)(1)(a), Florida Statutes (1991). He was sentenced under section 775.084, Florida Statutes (1991), as a habitual offender to ten years in prison, and was fined $10,000. However, section 775.084 does not authorize any fines....

...Taylor, Assistant Attorney General, for appellant. Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellee. Before NESBITT, LEVY and SHEVIN, JJ. NESBITT, Judge. In this case, the State argues that the sentencing provisions of section 775.084(1)(c), Florida Statutes (1995) provide for a mandatory minimum sentence upon the trial court's classification of a defendant as a violent career criminal....

...On January 3, 1997, the State filed an information charging defendant with burglary of an unoccupied dwelling, a second degree felony. See § 810.02(3)(6), Fla. Stat. (1995). On January 17, 1997, the State filed a Notice of Intent to Seek Enhanced Penalty pursuant to section 775.084(1)(c)....

...At that time, defense counsel informed the court that defendant would accept the court's plea offer of sixty-five months as a violent career criminal. The State objected to the sentence, arguing that the court was obligated to impose the mandatory minimum sentence prescribed under section 775.084(1)(c), once the court classified the defendant as a violent career criminal....

...case, thus warranting a sentence for the defendant of less that the minimum mandatory sentence prescribed for a violent career criminal. The court entered adjudication and sentence, and the State timely appealed. The violent career criminal statute, section 775.084(1), provides in relevant part: (c) "Violent career criminal" means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(c), if it finds that: 1....

...n. (Emphasis added.) Thus, by the clear terms of the statute, once the defendant is classified as a violent career criminal, the statutorily prescribed sentence includes a mandatory minimum term of imprisonment. Further supporting this conclusion is section 775.0841, Florida Statutes (1995), which provides: Legislative findings and intent The Legislature finds a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals....

...e brought to bear in the apprehension, prosecution and punishment of such an individual. We acknowledge that we have previously held that the imposition of mandatory minimum terms under the habitual offender and habitual violent felony provisions of section 775.084 are permissive, not mandatory....

...The statute is drawn in such a way that the trial judge need only find that the defendant is not a danger to the community when the judge decides to sentence the defendant outside the mandatory sentencing provision of this section. Applying this analysis to the instant case, section 775.084(4)(c)(2), expressly provides that, for a felony of the second degree, a violent career criminal must be sentenced to "a term of years not exceeding 40, with a mandatory minimum term of 30 years' imprisonment." Since the trial court decided to sentence defendant as a violent career criminal, the court erred in sentencing the defendant to the sixty-five-month term ordered, rather than the term mandated by section 775.084(4)(c)2....

...entence mandated for a violent career criminal, or to allow defendant to withdraw from the plea agreement if he so chooses. See, e.g., State v. Gordon, 645 So.2d 140 (Fla. 3d DCA 1994). NOTES [1] Chapter 95-182, Laws of Florida substantially amended section 775.084 by creating the "Officer Evelyn Gort and All Fallen Officers Career Criminal Act of 1995".

...Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE, LEVY, GERSTEN and GODERICH, JJ. EN BANC LEVY, Judge. These cases were set for hearing en banc to determine whether the sentencing provisions of the habitual felony offender statute, Section 775.084, Florida Statutes (1989) [hereafter the "Act"], apply to life felonies....

..., because the defendant used a firearm during the commission of the murder. [1] The trial court found the defendant to be a habitual violent felony offender, and sentenced him to life in prison without eligibility for release for fifteen years under Section 775.084(4), Florida Statutes (1989)....

...a first-degree felony, which was reclassified to a life felony under Section 775.087(1)(a), Florida Statutes (1989), because Lamont used a firearm in the commission of the kidnapping. [2] *825 Lamont was sentenced as a habitual felony offender under Section 775.084(4)(a) to life imprisonment on the sexual battery and kidnapping charges, with a fifteen year habitual mandatory minimum and a three-year firearm mandatory minimum on each of those counts....

...Both defendants argue, inter alia, that the habitual felony offender statute, in its entirety, is inapplicable to life felonies. In essence, they base their argument on the fact that two particular subsections of the Act, to-wit: (4)(a) and (4)(b), fail to make reference to persons convicted of life felonies. Section 775.084, Florida Statutes (1989), provides for extended prison sentences for convicted felons who have incurred predicate prior felony convictions within prescribed intervals....

...A "habitual felony offender" has incurred two or more prior felony convictions, none of which has been pardoned or otherwise set aside, and the last of which was imposed, or resulted in release from prison, within five years of the subject conviction. § 775.084(1)(a), Fla. Stat. (1989). Section 775.084(4)(a) of the Act provides for sentencing the habitual felony offender for the subject conviction, as follows: 1....

...A "habitual violent felony offender" under the Act has incurred one or more enumerated violent felony convictions, none of which has been pardoned or otherwise set aside, and the last of which was imposed, or resulted in release from prison, within five years of the subject conviction. § 775.084(1)(b), Fla. Stat. (1989). Section 775.084(4)(b) provides for sentencing the habitual violent felony offender as follows: 1....

...1974); Allied Fidelity Ins. Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982); Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mutual Automobile Insurance Co., 218 So.2d 793 (Fla. 3d DCA 1969), affirmed, 232 So.2d 737 (Fla. 1970). Sections 775.0841 and 775.0842, Florida Statutes (1989), discuss the intent of the legislature in the prosecution of career criminals. These Sections clearly reflect that the legislature intended persons qualifying as career or habitual criminal offenders to receive enhanced punishment, and provide as follows: 775.0841 Legislative findings and intent....

...ison space. The Legislature intends to initiate and support increased efforts by state and local law enforcement agencies and state attorney's offices to investigate, apprehend, and prosecute career criminals and to incarcerate them for extended terms. 775.0842 Persons subject to career criminal prosecution efforts....

...— A person who is under arrest for the commission, attempted commission, or conspiracy to commit any felony in this state shall be the subject of career criminal prosecution efforts provided that such person qualifies as a habitual felony offender or a habitual violent felony offender under s. 775.084....

...al crimes receive greater punishment than others. As recognized by the First District in Barber v. State, 564 So.2d 1169, 1171 (Fla. 1st DCA) rev. denied 576 So.2d 284 (Fla. 1990): The legislature chose to restrict the class of felons encompassed by section 775.084, based upon the number of prior felonies and misdemeanors committed, and based upon the length of time since the defendant committed the last crime....

...ng under the habitual offender statute. Defendant Brooks was convicted of second degree murder with a firearm, under Section 782.04(2), which states that persons convicted under this statute may be punished "as provided in s. 775.082, s. 775.083, or s. 775.084....

...b), Florida Statutes (1989), which defines burglary of an occupied dwelling with a firearm, and Section 787.01(2) which defines kidnapping, all state that persons convicted under the statute may be punished "as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis added). [3] The legislature would not have specifically indicated in each statute that Section 775.084 was to be used in determining a defendant's sentence if it *827 had intended to exclude defendants convicted of such felonies from the scope of the Act....

...ctions do not provide for the sentencing of life felonies. However, that does not affect the applicability of the remainder of the Act to life felonies. The statutory sections relating to the offenses for which the defendants were convicted refer to Section 775.084 in its entirety....

...A defendant sentenced under this section shall not be eligible for gain-time granted by the Department of Corrections except that the department may grant up to 20 days of incentive gain-time each month as provided for in s. 944.275(4)(b). In other words, under the language of Section 775.084(4)(e), once an offender has met the criteria of Section 775.084(1), and has been classified as a habitual offender, such a defendant need not be sentenced within the sentencing guidelines....

...te. Thus, a more accurate analysis of the applicability of the act would be as follows. Once a defendant has been classified as a habitual felony offender, then "the court may impose an extended term of imprisonment as provided in this section... ." § 775.084(1)(b), Fla....

...t to Section 775.087, Florida Statutes (1989), because of the use of a firearm during the commission of each murder. In each of these cases, the trial court found the defendants to be habitual violent felony offenders and sentenced them, pursuant to Section 775.084(4)(b)(1), to life in prison without eligibility for release for fifteen years....

...nhancing the sentence of a defendant convicted of a life felony," Johnson v. State, 568 So.2d at 520, and "Under the plain language of the statute, only first degree felonies — not those which are already made life felonies — can be enhanced under section 775.084(4)(b)1," Walker v. State, 580 So.2d at 281. See also Graham v. State, 583 So.2d 1107 (Fla. 1st DCA 1991) (holding that Section 775.084 does not apply to sentencing of defendant convicted of life felony); Gholston v. State, 589 So.2d 307 (Fla. 3d DCA 1990) (holding that Section 775.084 does not apply to sentencing of defendant convicted of sexual battery while armed with a deadly weapon, a life felony); Barber v....

...*829 For the reasons discussed above, we find that a more reasonable construction of the statute, in accordance with legislative intent, supports our holding that life felonies are subject to the provisions of the habitual offender act, specifically including Section 775.084(4)(e), and accordingly affirm the sentencing of the life felony defendants as habitual offenders. [8] Although we agree with the above cited cases from the First, Fourth, and Fifth District Courts of Appeal holding that subsections 775.084(4)(a) and (b) do not apply to persons convicted of life felonies, the result we reach herein is different than that reached by the other District Courts of Appeal due to the fact that we find that the remaining portions of Section 775.084, specifically including subsection 775.084(4)(e), do apply to persons convicted of life felonies....

...Lamont. However, we reverse and vacate that part of defendant Lamont's sentence containing the provision that he serve a minimum mandatory of 15 years. The trial court incorrectly ascribed its authority as to the 15 year minimum to the provisions of Section 775.084(4)(a) and Section 775.082(1), neither of which are applicable to the offense for which Lamont was convicted....

...State, 528 So.2d 125 (Fla. 3d DCA 1988), appeal after remand 545 So.2d 452 (Fla. 3d DCA), review denied 554 So.2d 1167 (Fla. 1989). In conclusion, both the finding by the trial court that Brooks and Lamont are habitual felony offenders, as provided for in Section 775.084, Florida Statutes (1989), and the subsequent sentencing of the defendants thereunder are affirmed. Other than subsections (4)(a) and (b), all portions of Section 775.084, specifically including subsection (4)(e), fully apply to each of these defendants....

...*830 SCHWARTZ, C.J., and BARKDULL, NESBITT, JORGENSON, COPE and GERSTEN, JJ., concur. HUBBART, Judge (dissenting). I must respectfully dissent. I would reverse the life sentences, together with the fifteen-year mandatory minimum terms, which were imposed below as habitual violent felony offender sentences under Section 775.084(4)(b), Florida Statutes (1989), (1) on the defendant James Edward Brooks for the reclassified life felony of second-degree murder with a firearm, §§ 782.04(2), 775.087(1)(a), Fla....

...(2), 775.087(1)(a), Fla. Stat. (1989) — and remand the cause to the trial court with directions to resentence the above defendants pursuant to the sentencing guidelines. I I would reach this result because, simply stated, the Habitual Offender Act [§ 775.084, Fla....

...(1989)] by its plain terms contains no extended term of imprisonment for a life felony conviction — and consequently, a defendant who is convicted of a life felony, as here, must be sentenced under the sentencing guidelines. §§ 921.001(4)(a); 921.005, Fla. Stat. (1989); Fla. R.Crim.P. 3.701, 3.988. Section 775.084(4)(a), (b), Florida Statutes (1989), sets out in its entirety the extended terms of imprisonment for a defendant who qualifies as an habitual felony offender [§ 775.084(1)(a), Fla. Stat. (1989)] or an habitual violent felony offender [§ 775.084(1)(b), Fla....

...Indeed, the sentences imposed in the case at bar — life imprisonment with no eligibility for release for fifteen years — represent the extended term of imprisonment for an habitual violent felony offender who has been convicted of a felony in the first degree, not a life felony. § 775.084(4)(b)(1), Fla....

...Under the guise of statutory interpretation, the court has simply rewritten the Habitual Offender Act so as to provide an extended term of life imprisonment with no parole for an habitual violent felony offender who is convicted, as here, of a life felony. The court purports to find this extended term of imprisonment in Section 775.084(4)(e), Florida Statutes (1989), which provides as follows: "(e) A sentence imposed under this section shall not be subject to the provisions of s....

...944.275(4)(b)." Obviously, this subsection contains no extended term of imprisonment for a life felony conviction or, for that matter, any other felony conviction; it provides only that as to sentences imposed under the Habitual Offender Act [which are exclusively found in Section 775.084(4)(a), (b)], the sentencing guidelines [s....

...The court relies, in part, on language which is found in all Florida statutes proscribing felonies [including the felony statutes involved in this case], namely, that a violation of a felony statute inter alia is "punishable ... as provided in s. 775.082, s. 775.083, or s. 775.084." (emphasis added)....

...[3] Section 794.011(3) states specifically that: "A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon ... is guilty of a life felony, punishable as provided in s. 775.082, s. 775.083 or 775.084." (Emphasis added). Section 810.02 reads in pertinent part: "Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083 or s. 775.084 if, in the course of committing the offense, the offender: ......

...." (Emphasis added). And, Section 787.01(2) states in pertinent part: "A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084." (Emphasis added). [4] Moreover, the sexual battery statute under which defendant Lamont was convicted, Section 794.011(3), specifically refers to a life felony conviction as being subject to the penalty provisions of Section 775.084. The sexual battery statute states, in pertinent part, that: "A person who commits sexual battery ... is guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." (Emphasis added.) It is evident from this statutory language that the legislature did in fact intend for the habitual offender statute to apply to life felonies....

...[3] The State asserts that the cited authorities cannot apply to a violent career criminal sentence like this because it is mandatorily required upon conviction. See State v. Meyers, 708 So.2d 661 (Fla. 3d DCA 1998). It is obvious, however, that such a sentence need not be imposed if the procedural requirements of section 775.084, Florida Statutes (1997) are not followed, or if the court makes a finding (as it was apparently prepared to do before trial) that the sentence was not necessary for the protection of the public. See § 775.084(3)(a)6, Fla. Stat. (1997)(now § 775.084(3)(c)5, Fla....

1993, the effective date of an amendment to section 775.084, Florida Statutes (1993), which proscribes

...result of a prior felony conviction; or (b) within five years from the date of conviction for the defendant's last prior felony or within five years from the date of the defendant's release from prison or supervision for a prior felony offense. See § 775.084(1)(a)2.a., Fla....

...Although the appellant in the instant case conceded he had committed prior felonies, he did not concede that the felony for which he is being sentenced was committed within five years of his last felony conviction, or within five years of his release from prison or supervision for a felony offense. § 775.084, Fla....

...Stat. (2000). The state also had the obligation of showing that neither the instant offense nor either of the prior offenses being used to habitualize is a "violation of s. 893.13 relating to the purchase or the possession of a controlled substance." § 775.084(1)b.3.; c.f....

...Before BARKDULL, NESBITT and JORGENSON, JJ. PER CURIAM. The defendant filed a motion to correct illegal sentence contending that the trial court improperly amended his sentence to add a minimum mandatory term pursuant to the habitual violent felony offender statute. See Fla.Stat. § 775.084(4)(1995)....

...After the defendant began serving his sentence, the Department of Corrections wrote to the trial judge and stated that the sentencing documents did not refer to a mandatory term but they had set up the defendant's record to show a twelve year mandatory sentence pursuant to Florida Statute section 775.084....

...Under Count V, appellant was convicted of aggravated assault, a third-degree felony. Under Count VI, appellant was convicted of aggravated battery, a second-degree felony. Before sentencing, the court found appellant to be a habitual felony offender under Section 775.084, Florida Statutes....

...As to Count VI, the court reclassified appellant's aggravated battery conviction from a second-degree felony to a first-degree felony, and sentenced appellant to 30 years' imprisonment. We agree with appellant that the trial court misapprehended the habitual felony offender statute. Section 775.084, Florida Statutes, makes no provision for enhancing penalties for first-degree felonies punishable by life, life felonies, or capital felonies....

...Accordingly, the habitual felony offender statute can have no application to appellant's sentences under Counts I through III. As to appellant's first-degree felony conviction under Count IV, the trial court correctly sentenced appellant to life imprisonment. § 775.084(4)(a)1, Fla....

...Moreover, while the sentence imposed for the aggravated battery conviction (30 years) is within that authorized by the habitual offender statute, [1] the sentence imposed for appellant's aggravated assault conviction (15 years) exceeds the ten-year statutory cap set forth in Section 775.084(4)(a)3, Florida Statutes....

...I concur with the majority in its certification of the question, and in its holding that life felonies may not be enhanced under the habitual felony offender statute. I otherwise dissent for the same reasons expressed in my dissent in Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA 1991) (en banc). NOTES [1] See § 775.084(4)(a)2, Florida Statutes.

...The trial court failed to address ground two of appellant’s motion. Appellant correctly argued in this ground that his violent career criminal (VCC) sentences on count three (aggravated fleeing and eluding) and count seven (grand theft) are illegal. These offenses are not enumerated by the VCC statute. See § 775.084(l)(d), Fla....

...Hearns, 961 So.2d 211, 212 (Fla.2007), the Supreme Court of Florida considered whether the offense of battery on a law enforcement officer could qualify as a forcible felony [1] under section 776.08, Florida Statutes (2000), for the purpose of imposing a sentence enhancement under the violent career criminal (VCC) statute, section 775.084(1)(d)....

...We reverse and remand for resentencing. In 1999, a jury convicted Mr. Johnson of robbery and battery on a person sixty-five years of age or older. For the robbery count, the trial court sentenced Mr. Johnson as a habitual felony offender (HFO), see § 775.084(1), Fla....

...In 1997, a jury convicted appellant of carjacking with a firearm and robbery with a firearm. The court sentenced appellant as a habitual violent felony offender (HVFO) to concurrent terms of life in prison on each count with the 15-year mandatory minimum required by the HVFO statute. § 775.084(4)(b)l., Fla....

...r law. His claim that his prior armed burglary conviction would not have qualified him as an HVFO under the pre-amendment version of the statute is false. Armed burglary was enumerated as a qualifying offense before the amendments of chapter 95-182. § 775.084(l)(b)1.j., Fla....

...Thereafter, during a very abbreviated plea and sentencing hearing, Judge Coe asked whether Mr. Raines had been "noticed as a habitual offender," but then discussed the guidelines range for the sentence and never actually conducted the hearing or made any of the determinations required by section 775.084(3), Florida Statutes (1989)....

...Raines could obtain a change in his federal sentence based on a determination that his 1990 sentence in Florida was illegal, but if there is, that relief must be sought in the appropriate federal court. Affirmed. CASANUEVA and LaROSE, JJ., concur. NOTES [1] When section 775.084 was first enacted in 1971, it did not use the phrase "habitual offender," and instead referred to "subsequent felony offenders." See § 775.084, Fla....

...to vitiate the trial entirely and require a new one."). However, the trial court erred during sentencing when it stated that it did not think it had any discretion other than to sentence the defendant to life in prison as a violent career criminal. Section 775.084(3)(c)5., Florida Statutes (2008), provides that, if the court determines the defendant meets the criteria for imposing such a sanction, "the court must sentence *915 the defendant as a violent career criminal, subject to imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public." § 775.084(3)(c)5., Fla....

...State, 773 So.2d 650, 651 (Fla. 1st DCA 2000) (Browning, J., concurring in part and dissenting in part), aff'd, 822 So.2d 1284 (Fla.2002), and the fact that both the firearms reclassification provisions of section 775.087(1) and the habitual felony offender provisions of section 775.084 have been labeled as sentencing enhancement statutes....

...Fussell, 813 So.2d at 131; see also Mills, 822 So.2d at 1288 (noting in the absence of a contrary legislative intent, the two statutory provisions in question should be read in pari materia ). *582 Finally, Roberts challenges his habitual felony offender classification by claiming that the judicial fact-finding required by section 775.084 violates a defendant's Fifth, Sixth, and Fourteenth Amendment rights to: (1) notice in the charging document, (2) proof beyond a reasonable doubt, (3) confrontation, and (4) trial by jury trial, in light of Shepard v....

...His sentences were suspended and he was placed on two years' community control and two years' probation. Although the appellant's sentence was properly enhanced for delivery of cocaine under *881 the habitual offender statute, the appellant can not receive a habitual offender sentence for possession of cocaine. See § 775.084(1)(a)3., Fla.Stat. (1993); Perez v. State, 647 So.2d 1007 (Fla. 3d DCA 1994) (section 775.084(1)(a)3....

...Cribbs claimed that his sentence of fifteen years' prison with a ten-year mandatory minimum as a violent career criminal (VCC) on his conviction for battery on a law enforcement officer (BOLEO) is illegal because BOLEO is not a "forcible felony" that qualifies for VCC sentencing. See § 775.084(1)(d)(1)(a), Fla....

...The defendant argues that the trial court erred in allowing the State's psychologist to opine that the victim was not capable of appraising the nature of her conduct or of giving knowing, voluntary, and intelligent consent to intercourse. The defendant also argues that section 775.084, Florida Statutes (2006), the habitual felony offender statute, violates his right to a trial by jury....

...ations with the defendant, constituted competent, substantial evidence from which the trial court could find that the victim was mentally defective and thus that he did not consent. 784 So.2d 591, 593-94 (Fla. 4th DCA 2001). The Constitutionality of Section 775.084, Florida Statutes (2006), the Habitual Felony Offender Statute The defendant asserts that, based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the judicial fact-finding required by section 775.084, Florida Statutes (2006), the habitual felony offender statute, violates his right to a trial by jury....

...be sentenced [as a prison releasee reoffender] .... (emphasis added). However, section 775.082(8)(c) states that "[n]othing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law." When construing a statutory provision, legislative intent is the polestar that guides our inquiry....

...be sentenced under the sentencing guidelines and must be sentenced according to the provisions in the PRRPA. The remaining question is whether section 775.082(8)(c), which authorizes the imposition of a greater sentence of incarceration pursuant to section 775.084, Florida Statutes (1997), or "any other provision of law," prevails over the statute's earlier preclusion of a guidelines sentence....

...or species as those specifically enumerated." Green v. State, 604 So.2d 471, 472 (Fla.1992). Following that principle, it would seem that the phrase "any other provision of law" should be interpreted to refer to penalty statutes similar in nature to section 775.084. Section 775.084 provides enhanced penalties for habitual offenders, habitual violent felony offenders, and violent career criminals. Section 775.084 is not a general sentencing statute but instead applies only to defendants who qualify under its provisions for enhanced sentencing. Thus, under the principle of ejusdem generis, it would seem that the phrase "any other provision of law" should more appropriately be construed to mean other penalty enhancement statutes similar to section 775.084 rather than the general sentencing provisions of the sentencing guidelines....

...BLUE, A.C.J., and SALCINES, J., Concur. NOTES [1] We note that the supreme court has concluded that section 775.082(8)(c), Florida Statutes (1997), authorizes the trial court to impose a prison releasee reoffender sentence and a habitual felony offender sentence under section 775.084, Florida Statutes (1997), if the habitual felony offender sentence is greater....

...Julio Curi appeals from an order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Because burglary of an unoccupied dwelling is a "forcible felony," for which defendant could be sentenced as a violent career criminal, we affirm. § 775.084(1)(d)(a), Fla....

...viction relief pursuant to Florida Rule of Criminal Procedure 3.800. We affirm. Westberry asserts in part that he did not qualify for habitual offender sentencing because his prior convictions did not satisfy the sequential sentencing requirement of section 775.084(5), Florida Statutes (2004)....

...ied for habitualization, Westberry would be correct, as the record reflects that those sentences were imposed on the same day (May 29, 2002). However, the state also relied upon the defendant's prior withhold of adjudication in case number 97-14598. Section 775.084(2), Florida Statutes (2002) provides that "the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction....

...The jury found defendant guilty of trespass, attempted burglary and battery of a law enforcement officer. At the sentencing hearing, the judge stated, "I do find from this appalling record, Mr. Bohannon, that you are a disgrace and I am, for the necessity of the protection of the public, sentencing you under statute number 775.084......

...Consequently, this point is not preserved for review and we do not reach it in this appeal. Second, defendant claims that the trial court failed to make the requisite findings in connection with his sentence to an extended term under the habitual offender law, section 775.084, Florida Statutes (1987)....

...dant. Weston v. State, 452 So.2d 95 (Fla. 1st DCA), review denied, 456 So.2d 1182 (Fla. 1984); see Eutsey v. State, 383 So.2d 219, 226 (Fla. 1980); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976); § 775.084(3)(d), Fla....

...ence. Accordingly, we affirm the judgment of guilt but vacate the sentence insofar as the extended term imposed under the habitual offender law and remand for reconsideration of the imposition of an extended term in compliance with the provisions of section 775.084 and this opinion....

...lifying convictions were sequentially and separately obtained. In order to qualify as a prior felony for HFO sentencing, the prior felony conviction must have been sentenced separately from the current offense and any other prior felony convictions. § 775.084(5), Fla. Stat. (2000). Under section 775.084(5), the sentencing for separate prior felony convictions for unrelated crimes can occur on the same day, but the sentences cannot be entered as part of the same sentencing proceeding....

...He asserts, implicitly, that it was a violation of his constitutional double jeopardy rights for the judge to have enhanced his sentence for battery on a law enforcement officer. The enhancement was imposed because appellant is an habitual felony offender. § 775.084, Fla....

...er courts. There is a logical argument to be made that battery on a law enforcement officer is a separate crime from battery but that argument will be better made by others in another day. Where we depart from the Oliveira decision is in considering section 775.084....

...fore convicted of petit theft, is guilty of a felony and the punishment may be further enhanced by a habitual felony offender statute where appropriate. It is our determination to analogize the felony petit theft statute, section 812.014(3)(c), with section 775.084 because a similar procedure is used in classifying and sentencing the felony petit theft defendant as is used in classifying and sentencing the repeat offender sentenced pursuant to section 775.084....

...subject rule of article III, section 6 of the Florida Constitution. See id. at 649. That chapter not only created the violent career criminal category of enhanced sentences, but it also amended the habitual violent offender sentencing provisions of section 775.084, Florida Statutes (1995). Appellant was sentenced as a habitual violent offender for his crimes. However, because chapter 95-182 did not change section 775.084 as it pertained to the sentencing of appellant, and appellant would have qualified for habitual offender sentencing under the 1994 version of the statute, the motion shows on its face that the 1995 amendment declared unconstitutional in Thompson did not affect appellant's sentence....

...respectively. The sentences were to be served consecutively. In sentencing the defendant, the judge departed from the recommended sentence under the guidelines. The reason given for the departure was that the defendant was an habitual offender under section 775.084, Florida Statutes (1983)....

...First, the defendant contends that the trial court erred in failing to make the specific findings of fact required under the habitual offender statute to show that an extended prison term was necessary to protect the public from defendant's further criminal conduct. § 775.084(3)....

...In Scott, the trial court merely stated that, based on the defendant's record and the particular facts of the case, it was necessary to treat the defendant as a subsequent felony offender. We held that such findings did not satisfy the requirements of section 775.084(3)....

...The issue presented in this appeal is whether the trial court erred in sentencing appellant, Anthony Roberts, as a habitual felony offender over defense objection. We hold that the trial court erred in sentencing appellant as a habitual felony offender without the necessary requisite record evidence required under section 775.084(1)(a), Florida Statutes (1999). See Boyd v. State, 776 So.2d 317 (Fla. 4th DCA 2001)( Lowenthal v. State, 699 So.2d 319 (Fla. 2d DCA 1997)). In keeping with Lowenthal, the trial court, on remand, should permit the state to present substantiated proof pursuant to section 775.084, Florida Statutes....

...The statutory provision at the base of the present issue, Section 847.011(1)(a), Florida Statutes (1981), raises a second offense of possession of obscene matter with intent to sell from a misdemeanor to a third degree felony. In the other line of cases the habitual criminal statute is involved. Now found at Section 775.084, that statute provides more severe penalties for felons and misdemeanants who are recidivists in certain specified respects. Under that statute the court holds a separate proceeding to determine whether the enhanced punishments are necessary for the protection of the public, and whether defendant is a habitual criminal. § 775.084(3)....

...Since defendant had taken an appeal, his conviction of larceny of an automobile was not final and, therefore, could not be relied upon to convict him as a subsequent felony offender until affirmed by the appellate court. Id. at 877. Coleman v. State, 281 So.2d 226 (Fla. 2d DCA 1973) is a similar case involving Section 775.084, Florida Statutes....

...der, "[w]ritten notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant." § 775.084(3)(a)2., Fla....

...State, 805 So.2d 1087 (Fla. 5th DCA 2002) ( Pitts II ); Pitts v. State, 766 So.2d 1191 (Fla. 5th DCA 2000) ( Pitts I ). We are aware of decisions that hold the harmless error analysis applies to instances *1260 where a defendant was not given timely notice pursuant to section 775.084(3)(a)2....

...This court, nevertheless, reversed the habitual felony offender sentence in Pitts I, and we are bound to do likewise in the instant case. Based on the facts and circumstances of the instant case, we reject the argument that the sort of notice advanced by the State fulfills the notice requirement of section 775.084(3)(a)2....

...The attached opinion is substituted therefor. PARKER, Judge. Charles A. Hightower appeals the final judgment that adjudicated him guilty of burglary and grand theft. Hightower argues on appeal that the trial court erred by sentencing him as a habitual violent felony offender pursuant to section 775.084, Florida Statutes (1989)....

...d theft. Hightower was on probation from all three of these cases when he committed the present offenses. A court may sentence a defendant as a habitual violent felony offender if the defendant previously has been convicted of a felony enumerated in section 775.084(1)(b)1, Florida Statutes (1989) and the defendant committed the present felony within five years of the date of the conviction of the last prior enumerated felony or within five years of the defendant's release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony. § 775.084(1)(b), Fla....

...mand for resentencing within the guidelines. In addition, we certify to the Florida Supreme Court the following question of great public importance: DOES THE TERM "OTHER COMMITMENT" IN THE PHRASE "FROM A PRISON SENTENCE OR OTHER COMMITMENT" *1222 IN SECTION 775.084(1)(b)2, FLORIDA STATUTES (1989), INCLUDE PROBATION? DANAHY, A.C.J., and ALTENBERND, J., concur.

...close as possible to achieving the original sentencing judge's sentencing intent. One option was to permit the State again to qualify the defendant as an HVFO if the defendant *454 had another prior conviction which would qualify him as an HVFO. See § 775.084(1)(b), Fla....

...Stat. (1991); Suarez, 808 So.2d at 1288. However, the defendant did not have another qualifying conviction. Another option was to qualify the defendant as a habitual felony offender (HFO), if he had two prior qualifying felony convictions. See id. § 775.084(1)(a), Fla....

...felony conviction or (b) within five years from the date of conviction for the defendant's last prior felony or within five years from the date of the defendant's release from prison or supervision for a prior felony offense, whichever is later. See § 775.084(1)(a), Fla.Stat....

...State, 742 So.2d 352 (Fla. 5th DCA 1999). In order to qualify as a predicate offense, both the commission and sentencing for the offense must have occurred prior to the commission of the offense for which the defendant is currently being sentenced. See § 775.084(5), Fla....

...third-degree murder was properly reclassified pursuant to the 10/20/Life statute as a first-degree felony, punishable by a maximum of 30 years in prison. However, the trial court also found Wiley to be a habitual felony offender, which, pursuant to section 775.084(4)(a)l., provided that “[t]he court ... may sentence the habitual felony offender as follows: (l)[i]n the case of a ... felony of the first degree, for life.” § 775.084(4)(a)l., Fla....

...by law.” See Walker v. State, 473 So.2d 694, 698-99 (Fla. 1st DCA 1985) (finding that a defendant charged with a second degree felony may be sentenced to life imprisonment under the combined reclassification provisions of both section 775.087 and 775.084)....

...With respect to the third issue, the trial court sentenced Kenon, for each attempted murder conviction, to a life sentence with a minimum term of three years based upon section 775.087(2), Florida Statutes (1997), as well as a minimum fifteen-year term based upon section 775.084(4)(b), Florida Statutes (1997)....

...murder conviction. The final issue we address concerns the alleged scoresheet errors. Our conclusion that imposition of a violent habitual offender sentence for each attempted murder conviction is appropriate renders the guidelines inapplicable. See § 775.084(4)(g), Fla....

...During sentencing, the trial judge relied on a DOC release-date letter, which indicated that Mr. Yisrael committed the target offenses within five or fewer years *954 of having been released for his predicate felonies. Based on this letter, Yisrael qualified as an HVFO under section 775.084, Florida Statutes (2001)....

...(2004) (“Except as provided by statute, hearsay evidence is inadmissible.”); Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997) (“[T]he state must furnish proof of ... the date that the defendant was released from prison imposed for the last felony conviction .... ”); § 775.084(3)(a)(4), Fla....

...*962 [APPENDIX] [[Image here]] *963 [[Image here]] *964 [[Image here]] *965 [[Image here]] *966 [[Image here]] . Mr. Yisrael committed the target offenses on February 21, 2001. .Yisrael was convicted of arson and robbery on July 10, 1992 (both of which are predicate felonies under section 775.084(1)(b)(1), Florida Statutes (2001)), and according to the DOC letter, the State released him on April 8, 1998, after Yisrael served sentences for those offenses. Yisrael committed his current cocaine-trafficking and felon-in-possession offenses on February 21, 2001, nearly three years after having been released for his 1992 felony convictions. Cf. § 775.084(1)(b)(2)(b), Fla....

...FACTS Paul New pled guilty to three counts of robbery. On November 1, 1994, he was sentenced as a habitual violent felony offender and the court imposed concurrent terms of fifteen years' incarceration with a minimum mandatory sentence of ten years pursuant to section 775.084(4)(b)....

...State, 387 So.2d 922, 931 (Fla.1980). Applying the teachings of Witt, we conclude that Hudson is not constitutional in nature and does not represent a development of fundamental significance but is merely an evolutionary refinement which makes clear that under section 775.084 a trial court has discretion in whether or not to impose a mandatory minimum sentence....

...Courts will not be *55 required to overturn convictions or delve extensively into stale records to apply the rule. The administration of justice would be more detrimentally affected if criminal defendants who had the misfortune to be sentenced during the six year window between the amendment of section 775.084 and the decision in Hale are required to serve sentences two or more times as long as similarly situated defendants who happened to be sentenced after Hale....

...d to habitual offender sentences under an erroneous application of the law-especially when we already have authorized postconviction relief on the basis of a retroactive application of Hudson in both Newell and Moody. ANSTEAD, J., concurs. NOTES [1] Section 775.084(4)(b)2, Florida Statutes (1993), provides in relevant part: (b) The court, in conformity with the procedure established in subsection (3), may sentence the habitual violent felony offender as follows: ....

...ears. [2] See Walsingham v. State, 602 So.2d 1297, 1297 (Fla.1992) (stating that "sentencing under the habitual offender statute is permissive, not mandatory"); Burdick v. State, 594 So.2d 267, 271 (Fla.1992) (holding that "sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive, not mandatory")....

...James Bell was charged by information with burglary with assault or battery while armed, unlawful possession of a firearm by a violent career criminal, attempted armed robbery, and attempted robbery. Prior to the plea, the State filed a general notice of intent to seek enhanced penalties pursuant to section 775.084, Florida Statutes (1997)....

...After acceptance of the plea and imposition of sentence, the State perfunctorily objected on the basis that the defendant qualified to be sentenced as a violent career criminal. The State failed to provide specific written notice of its intent to seek an enhanced "Gort" sentence under 775.084(3)(b)1, Florida Statutes (1997), prior to the plea. Section 775.084 contains the definitions, procedures, and sentencing penalties for three separate classifications—violent career criminals (the Gort sentencing enhancements), habitual felony offenders, and habitual violent felony offenders. For the State to give notice, as it did in this case, to the defendant that it intends to seek "imposition of an enhanced penalty pursuant to 775.084, Florida Statutes" does not give the defendant any useful notice of what particular classification, and hence penalty, she or he may be subject to upon conviction....

...Teal further argued that because the prison sentence in case number 91-20507 was imposed on the same day that he was convicted and habitualized in the present case, the conviction in case number 91-20507 was not a proper predicate for habitualization pursuant to section 775.084(5), Florida Statutes (2002)....

...2d DCA Dec.3, 2003), "[w]hen it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation." We conclude that the same analysis applies to a sanction of community control, and therefore, Teal's 1992 conviction and placement on community control in case number 91-20507 could properly serve as a predicate conviction for habitualization in the present case....

...Chapter 95-182 made an editorial revision in the part of the habitual offender statute which dealt with the earning of gain time by habitual felony offenders and habitual violent felony offenders. There was no substantive change. Compare ch. 95-182, § 2, Laws of Fla., and § 775.084(4)(j)1, Fla....

...(1995) ("A defendant sentenced under this section as a habitual felony offender or a habitual violent felony offender is not eligible for gain-time granted by the Department of Corrections, except that the department may grant up to 25 days of incentive gain-time each month as provided in s. 944.275(4)."), with § 775.084(4)(e), Fla....

...ime each month as provided in s. 944.275(4)."). Defendant also argues that chapter 95-182 imposed a requirement that he serve a minimum of eighty-five percent of his sentence before being released. Again, defendant is mistaken. He cites subparagraph 775.084(4)(j)2., Florida Statutes (1995), but that provision deals with violent career criminals, not habitual felony offenders or habitual violent felony offenders....

...fferent law, the Stop Turning Out Prisoners Act. See ch. 95-294, §§ 1, 2, Laws of Fla. (codified as § 944.275(4)(c)2., Fla. Stat. (1995)). The relevant part of the habitual offender statute incorporates subsection 944.275(4) by reference. See id. § 775.084(4)(j)1., Fla. Stat. (1995); § 775.084(4)(e), Fla....

...This is an appeal of an order denying a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure *198 3.800(a). We affirm in part and reverse in part. Defendant-appellant Joseph Romeo was convicted of manslaughter and sentenced as a Violent Career Criminal (VCC). See § 775.084(1)(c), Fla....

...years' incarceration with a ten-year minimum mandatory provision. Johnson contends that his prior convictions do not qualify him for habitual violent felony offender status because they did not fall within the five-year window period provided by subsection 775.084(1)(b)2.b., Florida Statutes (1997)....

...s of the date of the conviction of the last prior enumerated felony, or within [five] years of the defendant's release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later. § 775.084(1)(b)2 b, Fla....

...sentence, probation, community control, control release, conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. § 775.084(1)(b)2 b, Fla....

...It had sentenced him as a habitual violent felony offender but had not imposed minimum mandatory terms. The record contains a letter from the Department of Corrections to the judge advising that she was statutorily required to impose a minimum mandatory term when sentencing a defendant under section 775.084(4)(b), Florida Statutes (1993)....

...Although that was the law in this district in 1995, see Sims v. State, 605 So.2d 997 (Fla. 2d DCA 1992), it is no longer. The supreme court, in State v. Hudson, 698 So.2d 831 (Fla.1997), ruled that trial courts have discretion whether to impose minimum mandatory terms under section 775.084(4)(b)....

...andatory of three years for the armed robbery, thirty years with a three-year minimum mandatory for the aggravated battery, and thirty years for the possession of a firearm by a felon. He had been designated as a habitual felony offender pursuant to section 775.084, Florida Statutes (1993)....

...268 plus $13.40 as the 5% surcharge required by section 960.25, Florida Statutes (1993), as well as $273.45 plus other fees as ordered by the court as restitution. Willits is correct in claiming that his sentence for armed robbery is illegal because section 775.084 does not authorize any fines....

...The defendant claims that pursuant to Washington v. State, 29 Fla. L. Weekly D2011, 2004 WL 1933114 (Fla. 4th DCA Sept. 1, 2004), withdrawn and superseded on rehearing by, 895 So.2d 1141 (Fla. 4th DCA 2005), that the State's general notice of intent to seek an enhanced penalty pursuant to section 775.084, Florida Statutes, was insufficient notice thus subjecting him to an illegal sentence....

...refute any errors in that record (i.e., he was not the person convicted, he was not convicted of a certain offense, his conviction was vacated on appeal). When a "shotgun" notice informs a defendant that he is subject to all sentencing schemes under section 775.084, a defendant is given all the notice necessary to prepare for sentencing in his case....

...recognized to be a difference between Bell and Sampson [v. State, 798 So.2d 824 (Fla. 3d DCA 2001)], does not apply in Washington's case. He was given a notice of intent that he would be subject to an enhanced sentence under any of the provisions of section 775.084, and it was his responsibility to prepare accordingly....

...pursuant to Florida Rule of Criminal Procedure 3.800. We affirm. On June 13, 1990, a jury convicted Hubbard of burglary of a dwelling (count I) and attempted sexual battery (count II) for actions which occurred on May 15, 1989. Pursuant to sections 775.084(1)(b) and (4)(a), Florida Statutes (Supp.1988), the trial court sentenced Hubbard to ten years as a habitual violent felony offender on count I and thirty years as a habitual violent felony offender with a minimum mandatory of ten years on count II....

...ale within two years from the time Hale became final, which was February 9, 1994). Therefore, this issue is without merit. In his second issue, Hubbard argues that his sentences are illegal because they were imposed under the 1989 amended version of section 775.084, which the Florida Supreme Court found unconstitutional in State v. Johnson, 616 So.2d 1 (Fla.1993). However, Hubbard has not effectively alleged error under Johnson because chapter 89-280, Laws of Florida, which amended section 775.084, would not have changed his status as a habitual violent felony offender or the corresponding sentences....

...did not also expressly state that the first sentence was being imposed as an HFO sentence, the written sentence clarifies that the defendant was "adjudicated a habitual felony offender and has been sentenced ... in accordance with the provisions of section 775.084(4)(a), Florida Statutes." Additionally, immediately after oral pronouncement of the first sentence, the trial judge pronounced sentence on the second charge, expressly stating that Lewis was " also being sentenced as a habitual felony offender" on the second charge....

...State, 599 So.2d 1365 (Fla. 1st DCA 1992); Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992). Further, appellant argues that the trial court erred in sentencing him as a habitual offender for possession with intent to sell within 1000' of a school. Section 775.084(1)(a)(3), Florida Statutes (1995), allows enhanced sentencing as a habitual offender so long as "the felony for which the defendant is to be sentenced ... is not a violation of § 893.13 relating to the purchase or possession of a controlled substance." § 775.084(1)(a)(3) (emphasis added). Here, since possession with intent to sell is a violation of § 893.13 which relates to the possession of a controlled substance, habitual offender sentencing was improper. See § 775.084(1)(a)(3); Williams v....

...State, 608 So.2d 122 (Fla. 2d DCA 1992), aff'd on other grounds, 620 So.2d 1241 (Fla.1993). Accordingly, appellant's sentence for possession of a controlled substance is vacated and his enhanced sentence for possession with intent to sell is remanded for resentencing. See § 775.084(1)(a)(3); Williams, 667 So.2d at 914; Houser, 666 So.2d at 158....

...receive for the offense. See § 775.082(3)(c), Fla. Stat. (2008) (a second-degree felony is punishable by up to 15 years' imprisonment). The trial court denied the claim on the ground that Appellant was sentenced as an habitual felony offender. See § 775.084(4)(a)2., Fla....

...up to thirty years in prison. See § 775.082(3)(b), Fla. Stat. (2000). Pope was also subject to a fifteen-year minimum mandatory sentence for this offense. See § 790.235(1). Because Pope met the criteria for violent career criminal sentencing under section 775.084(1)(d), the provisions of section 775.084(4)(d)(1) applied, requiring that a life sentence be imposed unless, pursuant to section 775.084(4)(e), the trial court found that the imposition of a violent career criminal sentence was "not necessary for the protection of the public." If the trial court made such a finding, then "sentence [should have been] imposed without regard to [section 775.084]." § 775.084(4)(e)....

...for Pope's offense. When pressed by the State for an explicit finding that a violent career criminal sentence was not necessary for the protection of the public, the court declined to answer the question. The trial court invoked the procedure under section 775.084(3)(c)(5), which requires that the trial court make a record setting forth reasons for its decision not to impose the violent career criminal sentence when it declines to impose such a sentence....

...Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee. EN BANC KLEIN, Judge. Defendant appeals his sentence as an habitual offender because the court failed to make findings of fact required by section 775.084(1)(a) 1 & 2, Florida Statutes (1991)....

...At the sentencing hearing a fingerprint examiner testified that the defendant's fingerprints matched those from the 1989 and 1990 cases, and defendant did not contest the fact that those were his convictions. The trial court sentenced him as an habitual offender on the 1991 charges, but did not make findings of fact. Section 775.084(1)(a) 1, 2, 3 & 4, Florida Statutes (1991), provides that the court may extend the term of imprisonment for a defendant, as an habitual felony offender, if it finds that: (1) defendant has prior convictions of certain felonies, (2) th...

...nvictions were not pardoned, and (4) the convictions were not set aside. The statute requires findings of fact. In State v. Rucker, 613 So.2d 460 (Fla. 1993), the Florida Supreme Court held that a trial court's failure to make findings of fact as to section 775.084(1)(a) 3 & 4 (that the prior felony convictions had not been pardoned or set aside) was harmless error, where there was unrefuted evidence of the prior convictions as required by section 775.084(1)(a) 1 & 2....

...STONE, Judge, dissenting. I would not recede from Robinson, and would reverse Appellant's sentence for failure to make the required habitual offender findings. The harmless error analysis authorized by, and applied in, Rucker is limited to subsections 3 and 4 of section 775.084(1)(a), Florida Statutes. ON REHEARING EN BANC We deny rehearing but certify the following question as one of great public importance: WHETHER A TRIAL COURT'S FAILURE TO MAKE THE REQUISITE STATUTORY FINDINGS UNDER SECTION 775.084(1)(a) 1 AND 2 IS SUBJECT TO THE SAME HARMLESS ERROR ANALYSIS CONTAINED IN STATE v....

...egally enhanced as habitual felony offender sentences. As to the sentence for attempted first-degree murder with a firearm, a life felony, we agree and reverse. At one time, life felonies were not subject to habitual felony offender enhancement. See § 775.084(4)(a), Fla. Stat. (1993); Lamont v. State, 610 So.2d 435, 438 (Fla.1992) ("[O]ne convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084.")....

...ore remedial legislation closed the window on May 24, 1997. See Lewis v. State, 764 So.2d 874, 874 (Fla. 4th DCA 2000). Mr. James committed his offenses on May 22, 1996, within the window for challenging convictions improperly enhanced under amended section 775.084....

...A life felony is not the same as a first-degree felony punishable by life. See Burdick v. State, 594 So.2d 267, 268-69 (Fla.1992). At all pertinent times, a first degree felony punishable by life could be enhanced by habitual felony offender classification. See § 775.084(4)(a)1., Fla....

...The trial court enhanced the crime to a first degree felony on account of the use of a firearm. Id. § 775.087(1). The court determined that the defendant was a habitual violent felony offender ("HVFO") and imposed a life sentence with a mandatory minimum term of fifteen years. Id. § 775.084(4)(b)1....

...In the present case it is clear from the face of the record that count one, third degree murder, should have been classified as a second degree felony on the final judgment. Since the defendant is an HVFO, the maximum sentence on count one was thirty years with a mandatory minimum sentence of ten years. § 775.084(4)(b)2., Fla....

...The issue presented is whether the trial court erred in using felony petit theft as a predicate for imposition of the habitual felony offender sentence. We affirm but certify a question deemed to be of great public importance. The applicable provisions of the habitual offender statute, section 775.084, state: (1) As used in this act: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that: 1....

...nvictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance. Prior to 1992, a person adjudicated guilty of felony petit theft was subject to sentencing as provided by sections 775.082, 775.083, and 775.084, the habitual offender statute. See § 812.014(2)(d), Fla.Stat. (1991)[now renumbered as § 812.014(3)(c)]. However, in 1992, the legislature amended the petit theft statute, and in so doing, deleted any reference to section 775.084....

...The applicable DUI penalty provision, section 316.193(2)(b), provides: (b) Any person who is convicted of a fourth or subsequent violation of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; however, the fine imposed for such fourth or subsequent violation may be not less than $1,000....

...The use of the felony DUI as the predicate conviction was approved in Brown. The only distinction between this *337 case and Brown seems to be that the applicable DUI penalty provision expressly provides that one convicted of felony DUI may be sentenced in accordance with section 775.084, the habitual offender statute....

...or conviction within the preceding five years, for purposes of habitual offender sentencing. We affirm, but certify as a question of great public importance, whether a prior conviction for felony petit theft can be used as a qualifying offense under section 775.084, Florida Statutes....

...onviction of "sexual assault." A defendant may qualify as a habitual violent felony offender based on a foreign conviction as long as the foreign offense is "substantially similar in elements and penalties" to a qualifying offense in this state. See § 775.084(1)(e), Fla. Stat. (2001). Sexual battery is a qualifying offense under the habitual violent felony offender statute. See § 775.084(1)(b)(1)(b), Fla....

...tion was illegal. We affirm. One of the cases relied on by appellant for the argument that his sentence was illegal is King v. State, 681 So.2d 1136 (Fla.1996). In King, the trial court found that the defendant qualified as a habitual offender under section 775.084, Florida Statutes, but declared that a habitual offender sentence was unnecessary and imposed a guideline sentence of ten years in prison followed by two years probation....

...nine years probation. The state appealed that sentence, and we reversed, stating: In this case, the court sentenced Kennedy to ten years, the maximum imprisonment allowed for a third degree felony under the habitual offender statute. See Fla. Stat. § 775.084(4)(a)(3)....

...der sanctions, it necessarily found that the imposition of an enhanced sentence was "not necessary for the protection of the public." See Geohagen v. State, 639 So.2d at 612; Simon v. State, 684 So.2d 263, 264 (Fla. 4th DCA 1996) (quoting Fla. Stat. § 775.084(4)(c))....

...Molfetto was convicted of felony fleeing to elude, felony petit theft, obstructing or opposing an officer without violence, and escape from police custody. Originally, he was sentenced on the escape conviction to forty years' imprisonment as a violent career criminal pursuant to section 775.084(4)(c), Florida Statutes (Supp.1998)....

...ons of the record that conclusively show Molfetto was qualified to be sentenced as a VCC." Id. at 669. On remand, the trial court resentenced Mr. Molfetto as a habitual felony offender and imposed a sentence of thirty years' imprisonment pursuant to section 775.084(4)(a)....

...ted language from this court's prior opinion. Although our prior opinion could have been more precise, we disagree with Mr. Molfetto's argument. *969 In this case, violent career criminal sentencing is only one of several possible enhancements under section 775.084....

...Rogers, Bureau Chief and Amelia L. Beisner, Asst. Attys. Gen., Tallahassee, for respondent. OVERTON, Justice. We have for review Raulerson v. State, 589 So.2d 369 (Fla. 1st DCA 1991), in which the district court upheld the validity of the habitual offender statute, section 775.084(1)(b), Florida Statutes (1989). Raulerson was convicted of armed robbery. The State filed notice of intent to classify Raulerson as a habitual violent felony offender pursuant to section 775.084(1)(b) and produced evidence of two robbery convictions in 1979 and of a prison release date for those offenses of July 21, 1988....

...t with a fifteen-year mandatory minimum for the armed robbery and a three-year mandatory term for the use of a firearm. On appeal, the district court found that a sentence for committing a first-degree felony punishable by life may be enhanced under section 775.084, Florida Statutes (1989), and also expressly found that the violent habitual felony offender provisions of section 775.084 do not violate the constitutional prohibitions against double jeopardy and ex post facto laws....

...It did so by imposing the agreed *880 sentence on each of the four counts, with all of the sentences to run concurrently. By his motion, the defendant correctly points out that the legal maximum for a habitualized second degree felony is thirty years, with a mandatory minimum of ten years. § 775.084(4)(b)2., Fla....

...cation dates of the predicate offenses, where the adjudications occurred on October 17, 1988. Since the new crimes were committed within five years of the adjudication of the predicate offenses, it follows that the defendant qualifies as an HVO. See § 775.084(1)(b)2., Fla....

...Butterworth, Attorney General, and Karen Armstrong, Assistant Attorney General, and Douglas T. Squire, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Although the trial court sentenced appellant under the habitual felony offender statute, section 775.084(1)(a), (4)(a), Florida Statutes (1999), and the violent career criminal statute, section 775.084(1)(d), (4)(d), Florida Statutes (1999), appellant has shown no double jeopardy violation because he will serve only one sentence with a minimum mandatory term, as provided for by the violent career criminal statute....

...[1] On count III, the defendant was convicted of committing the offense of reckless driving, a misdemeanor, [2] but the written sentencing order indicates that the defendant was adjudicated to be an habitual "felony" offender on this count. This adjudication was incorrect and therefore must be stricken. See § 775.084, Fla....

...imprisonment followed by five years' probation. Both of these crimes are third-degree felonies, and thus the trial court was not authorized to impose a sentence greater than five years unless the defendant was sentenced as an habitual offender. See § 775.084, Fla....

...nse 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 § 775.084(1)(b), Fla....

...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....

...risonment not to exceed 15 years. However, in the absence of any objection to habitualization, the trial court did not err in relying on the statutory maximum sentence for a habitual violent felony offender convicted of a second degree felony. Under section 775.084(4)(b)2., the statutory maximum sentence for this offense, after habitualization, is 30 years....

...The state charged the defendant with committing arson on November 5, 1988, a first-degree felony proscribed by *366 section 806.01(1), Florida Statutes (1987). A jury found him guilty as charged. The state filed a notice of intention to seek an enhanced sentence under section 775.084, Florida Statutes (1988), the habitual offender statute....

...On the sentencing guidelines scoresheet, the trial court wrote "Deft declared habitual felon" in the space provided for reasons for departure from the guidelines. The result of being declared a habitual felon was that rather than be sentenced under the guidelines [1] , he was to be sentenced under section 775.084. Under section 775.084(4)(a)1, a first-degree felony offender "shall" be sentenced for life....

...a twenty-five year prison term and subsequent twenty year probationary period. This was error. If the trial court decides not to impose a life sentence, it must find that such a sentence is not necessary for the protection of the public pursuant to section 775.084(4)(c), and it would be restricted to the recommended or permitted guidelines, unless a valid written reason for departure exists....

...e basis for departing. Whitehead v. State, 498 So.2d 863 (Fla. 1986). Here, the record does not reflect that the trial court determined the life sentence was unnecessary. Thus, the court should have sentenced the defendant to life in accordance with section 775.084(4)(a)1. See Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990) (under section 775.084, as amended in 1988, once the court determines that a defendant has met the criteria as set forth in section 775.084 and is habitualized, it must sentence the defendant to a sentence pursuant to section 775.084)....

...This case is similar to State v. Allen, 573 So.2d 170 (Fla. 2d DCA 1991). There, as here, the defendant was convicted of a first-degree felony, was sufficiently noticed, and was declared a habitual felony offender. Although the trial court found he met the criteria under section 775.084, it wrote "habitual offender" in the space provided for reasons for departure on the scoresheet and sentenced him to forty years' incarceration followed by ten years' probation. We held that once the trial court determines the defendant has met the criteria as set forth in section 775.084(1)(a), it must sentence the defendant to such sentence in section 775.084(4)(a)1, 2 or 3....

...1988), which held that: when a felony offender is properly habitualized and the guidelines sentence is less than life, the trial judge may not exceed the guidelines' recommendation absent a valid reason for doing so, notwithstanding the mandatory language of section 775.084(4)(a)1. as contained in Florida Statutes. Brown, 530 So.2d at 53. Therefore, we again certify the following question as one of great public importance: HAS THE 1988 AMENDMENT OF SECTION 775.084, FLORIDA STATUTES, ALTERED THE SUPREME COURT'S RULING IN BROWN, HOLDING THAT THE LEGISLATURE INTENDED SENTENCING UNDER SECTION 775.084(4)(a) TO BE PERMISSIVE, RATHER *367 THAN MANDATORY, AS STATED IN DONALD? THREADGILL and PARKER, JJ., concur....

...The attempt to commit a life felony or first degree felony is a felony of the second degree. § 777.04(4)(b), Fla. Stat. (1989). [2] Betty was convicted of a second degree felony, and as a habitual offender, he could be sentenced up to thirty years in prison. § 775.084(4)(a)2., Fla....

...served in his motion to correct sentencing errors filed under Florida Rule of Criminal Procedure 3.800(b)(2). First, Jones correctly argues that the habitual felony offender sentencing statute exempts drug offenses of possession with intent to sell. § 775.084(1)(a)(3), Fla....

...e of Criminal Procedure 3.800(a). We reverse because the trial court failed to address Rutherford's claim that the predicate offenses used to qualify him as a habitual violent felony offender did not satisfy the sequential convictions requirement of section 775.084(5), Florida Statutes (Supp....

...Thus, the objection of defendant-appellant Woody was properly overruled. The defendant challenges his sentence as a violent career criminal. He argues that his predicate offenses were non-violent burglaries which should not have been counted as qualifying offenses. See § 775.084(1)(d)1.a., Fla....

...The Hudson majority stated: This Court has repeatedly held that sentencing under the habitual offender statute is permissive, not mandatory. Walsingham v. State, 602 So.2d 1297 (Fla.1992); Burdick v. State, 594 So.2d 267 (Fla.1992). This discretion extends to sentencing under both section 775.084(4)(a), Florida Statutes (1995), the habitual felony offender provision, and section 775.084(4)(b), the habitual violent felony offender provision....

...The district courts reached the same conclusion in the other conflict cases. See [ Sims v. State 605 So.2d 997 (Fla. 2d DCA 1992)]; [ Martin v. State, 608 So.2d 571 (Fla. 5th DCA 1992) ]. We do not agree with the interpretation imposed by the conflict cases. In Burdick, we explained that even though section 775.084(4)(a) provides that the court "shall" sentence an habitual felony offender to a specified term of years, the statute must be read consistently with subsection (4)(b), which provides that the court "may" sentence an habitual violent felony offender to the terms specified....

...truction that when a statute is reenacted, the judicial construction previously placed on the statute is presumed to have been adopted in the reenactment." Id. at 271. Thus, the legislature has at least tacitly approved the Court's interpretation of section 775.084(4) as providing for permissive sentencing....

...ny. Under the PRR Act, a first degree felony is punishable by thirty (30) years imprisonment. See § 775.082(8)(a)2.b., Fla. Stat. (1997). As a violent career criminal, however, the appellant faced life imprisonment for this first degree felony. See § 775.084(4)(c)1., Fla....

...carjacking was error because the sentence for each carjacking conviction under both the PRR Act and the Violent Career Criminal Act is life. As the State properly concedes, pursuant to section 775.082, a court may impose a concurrent sentence under section 775.084 only if it is a greater sentence....

...Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge. *253 PER CURIAM. Linnies G. Spikes appeals an order denying his motion for postconviction relief. We affirm. Defendant-appellant Spikes was convicted of burglary of an unoccupied conveyance and sentenced as a violent career criminal. See § 775.084(1)(c), Fla....

...ive 1995 grand thefts; a 1995 felony petit theft; and a 1995 attempted burglary of a structure. [1] The sexual battery conviction is the only offense that meets the requirements for violent career criminal sentencing enhancement pursuant to sections 775.084(1)(c) and 776.08, Florida Statutes (1995)....

...Although the State mentioned a prior conviction for escape during the sentencing hearing, without a copy of that conviction, the trial court could not determine whether it was a qualified offense. See Green v. State, 647 So.2d 274 (Fla. 2d DCA 1994). Regardless, section 775.084(1)(c) requires that the defendant have at least three prior convictions for the specified offenses....

...On remand, the trial court may again sentence Landreth as a violent career criminal if he qualifies. See Hardwick v. State, 677 So.2d 958 (Fla. 2d DCA 1996). FULMER, A.C.J., and DAVIS, J., Concur. NOTES [1] A conviction for an "attempt" to commit one of the noted offenses does not meet the requirements of section 775.084(1)(c), Florida Statutes (1995).

...elon. We reverse and remand for correction of the sentence. For possession of a firearm by a convicted felon, section 790.23, Florida Statutes (1999), the trial court sentenced Irons to three years in state prison as a habitual felony offender under section 775.084, Florida Statutes (1999)....

...his last prior felony conviction or other qualified offense or within five years of his "release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense." § 775.084(1)(a)2, Fla....

...For a felony conviction from another state to be considered a qualified offense for purposes of the habitual offender statute, the offense in question must be substantially similar in elements to a Florida felony offense and must be punishable by a term of imprisonment in excess of one year. § 775.084(1)(c), Fla....

...Furthermore, at the sentencing hearing, the State declared that Harris qualified as a VCC on all counts. The State also declared that the jury returned verdicts with the highest degree of guilt for each count, and that the trial court was required to review section 775.084, Florida Statutes (1999) to decide if Harris qualified as a career criminal on all counts....

...his priors. The trial court further notified Harris that he had a twenty-year history of committing violent crimes in this community and in Georgia, and that his last two victims were in their seventies. The trial court then declared that, based on section 775.084, Harris met the criteria for life in prison on count 1 and consecutive life prison on count 2....

...3 and 4. On count 6, the trial court sentenced Harris to life in prison, to run concurrently with counts 1 and 2. The trial court further declared that the sentences were necessary for the protection of the public and that they met the criteria for section 775.084....

...2d DCA 1993). Under the totality of circumstances, the trial court’s intention is clearly discernible from the record. The sentence is thus what the trial court intended it to be— Harris was sentenced as a VCC on counts 1, 2 and 6. Additionally, section 775.084(l)(c) requires the court to impose the VCC sentence if the defendant qualifies. Also, the VCC sentence is a mandatory life sentence under section 775.084(l)(b) and (4)(b), and *1169 the court did not sentence the defendant to a minimum mandatory sentence, which is required if a defendant is sentenced as a HVO offender under section 775.084(l)(b) and (4)(b)....

...d his plea. II. THE HABITUAL OFFENDER STATUS In order to sentence Mr. Ruth as a habitual offender on the drug trafficking charge, the state was obligated to establish the essential prior convictions, and otherwise comply with the applicable statute. § 775.084(1), Florida Statutes (1987)....

...Ruth to specifically enforce the plea agreement if that remedy is appropriate. [4] The trafficking sentencing hearing took place on September 8, 1989, for an offense occurring on January 3, 1988. The parties have relied on the habitual offender statute effective October 1, 1988. § 775.084, Fla. Stat. (Supp. 1988) (corresponds to Ch. 88-131, § 6, Laws of Fla.). In this case, however, the operative statute is section 775.084, Florida Statutes (1987)....

...3d DCA 1986); Cofield v. State, 474 So.2d 849 (Fla. 1st DCA 1985). Second, we reverse the twenty-year sentence imposed on the burglary conviction under the Habitual Offender Act because the trial court failed to make the required statutory findings as defined by Section 775.084(1)(a), Florida Statutes (1989), before sentencing a defendant as a habitual felony offender — findings which must be made by the trial court, supported by a preponderance of the evidence, before a sentence under the Habitual Offender Act may be imposed. Walker v. State, 462 So.2d 452 (Fla. 1985); Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990); § 775.084(3)(d), Fla....

...Dirga, P.A., Orlando, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. Cedric Guion appeals his sentences as an habitual violent offender pursuant to section 775.084, Florida Statutes (1997)....

...iled to show that he was the subject of that conviction. We affirm. Guion argues that the state never established that the predicate Alabama conviction used to classify him as an habitual violent felony offender was a "qualified" offense pursuant to section 775.084, Florida Statutes (1999). Subsection 775.084(1)(d) provides: "Qualified offense" means any offense, substantially similar in elements and penalties to an offense in this state, which is in violation of a law of any other jurisdiction, whether that of another state, the District...

...The state sufficiently established that the predicate Alabama conviction was a "qualified" offense under the habitual violent offender statute because it carried its burden of showing that the elements and the penalties are substantially similar to the Florida robbery offense. § 775.084(1)(d), Fla....

...Petitioner and another were convicted in the Circuit Court in and for Santa Rosa County on possession of burglarious tools on September 16 and 17, 1974, and of breaking and entering into a coin-operated vending machine on September 17, 1974. Petitioner was sentenced as a recidivist under Section 775.084, Florida Statutes (1973), to a prison term of ten years, the last five of which were to be suspended and replaced by five years probation....

...tion 775.09, .10, and .11. In that year, however, the Legislature enacted Chapter 71-136, Laws of Florida, which repealed Section 775.09 and .10, dealing with the punishment for second and fourth felony convictions respectively, and replaced it with Section 775.084. Section 775.084, Florida Statutes (1973), "was intended to be substituted in the stead of the repealed sections and ......

...he imposition of enhanced punishment in the normal recidivist situation." Finally, the court concluded that, "save for the specific mention of the now repealed §§ 775.09 and 775.10," Section 775.11 made sense when read in pari materia with the new Section 775.084....

...*603 As indicated above, the District Court of Appeal, First District, after acknowledging conflict with Wright, supra, determined that Section 775.11(1) was designed only "to afford an opportunity for the State to seek the extended term of commitment provided for by § 775.084 when, through oversight, the fact of the previous conviction did not appear or become known to the court or prosecutor until `after sentence or conviction' for the subsequent offense." The court concluded that the repeal of Section 775.11, effective October 1, 1975, "evidences legislative intent that the provisions of § 775.084, which continues in effect, be utilized in accordance with due process of law independent of former § 775.11." A superficial analysis of this rather knotty problem of statutory construction suggests that Section 775.11 is designed to provide a means of penalizing a defendant under Section 775.084 when the fact of eligible prior convictions is made to appear subsequent to the trial court's original sentence for the later offense....

...ROBERTS (Retired), J., concurs in judgment. BOYD, J., dissents with an opinion. BOYD, Justice, dissenting. I respectfully dissent to the majority opinion and would adopt the statutory construction stated in Wright v. State, 291 So.2d 129 (Fla. 2d DCA 1974). Section 775.084 contained in both the statutes of 1973 and 1975 permits judges to impose criminal penalties for being habitual criminals. Section 775.11 in the 1973 and 1975 statutes provided the same constitutional standards for a fair trial as in other criminal proceedings. Since both 775.084 and 775.11 related to the same subject matter, the court should have construed them in pari materia to require the State to comply with both statutes. It is elementary that conflicts and uncertainties in criminal statutes must be resolved against the State and for the accused. To a person who receives an enhanced sentence under Section 775.084 it makes little difference that habitual criminality is not defined as a criminal offense....

...Equal protection of the law prohibits the Legislature and the courts from granting jury trials and other "fair trial" rights to persons accused of certain crimes and denying them to those accused of being habitual criminals. If the majority opinion correctly interprets the legislative intent, Section 775.084, as it now exists without Section 775.11, is clearly unconstitutional....

...al Procedure 3.800(a). While he raised several issues, we address one. He contends he was improperly sentenced as a habitual violent offender based upon the offense of carjacking, which is not an enumerated offense on which to base enhancement under section 775.084(1)(b), Florida Statutes (2000)....

...State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)). Brooks was convicted of attempted robbery, Case No. 00-19029, and sentenced as a habitual violent felony offender ("HVFO") to ten years in prison with an enhancement of five years minimum mandatory imprisonment. See § 775.084(1)(b), (4)(b). Brooks challenged this sentence as the offense relied upon to habitualize him, carjacking, was not an enumerated offense upon which enhancement is authorized. Brooks is correct; carjacking is not an offense enumerated under section 775.084(1)(b)1....

...ate double jeopardy). A plain reading of the statute, moreover, undermines the state's argument. The Legislature was aware of the differences in the crimes, as it included carjacking as a qualified offense for a three time violent felony offender in section 775.084(1)(c)1.q., yet it chose not to include it as a qualifying offense for HVFO status....

...Appellant claimed that he had received two 18-year habitual offender sentences for possession of cocaine with intent to sell or deliver. He claimed, further, that those offenses were committed on June 17, 1993, the same date on which an amendment to section 775.084 proscribing habitual offender sentencing for offenses relating to purchase or possession of a controlled substance became effective....

...two-year time limit established in Rule 3.850. Moreover, it is apparent that this claim is one which might be considered pursuant to Florida Rule of Criminal Procedure 3.800(a), as to which there is no time limit. Appellant correctly represents that section 775.084 was amended effective June 17, 1993, to proscribe an habitual offender sentence for offenses relating to the purchase or possession of a controlled substance....

...o offenses set aside, and to be resentenced pursuant to the guidelines. See, e.g., Gagger v. State, 699 So.2d 347 (Fla. 5th DCA 1997) (whether a defendant may be sentenced as an habitual offender for possession of cocaine depends upon the version of section 775.084 in effect when the offenses were committed)....

...The underlying incidents for which Cameron was sentenced occurred on September 16, 1999. On October 13, 2000, the jury entered a verdict of guilty on two counts. The court deferred sentencing since the state had given notice of its intent to have Cameron habitualized as an HFO. § 775.084, Fla....

...bation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. § 775.084(1)(a), Fla....

...Accordingly, the state must provide record evidence of the date of the current felony offense, the date of the conviction of the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last conviction. Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001); § 775.084(3)(a)(3), Fla....

...s. Based thereon, the court held that Anderson qualified as an habitual felony offender, and sentence was imposed accordingly. However, the trial court made no finding that the predicate convictions had not been pardoned or set aside, as required by section 775.084(1)(a)3. and 4., Florida Statutes (1989). Anderson contends first that section 775.084, Florida Statutes (1989) is unconstitutional, *1120 in that the prosecutor's discretion to decide who among qualifying defendants will receive habitual offender treatment deprives him of equal protection of the laws, and infringes on the courts' power to impose punishment. He next argues that the classification must be reversed based on the trial court's failure to make all of the findings required by section 775.084(1)(a)....

...Barber addressed the separation of power issue as well, holding that "the executive branch is properly given the discretion to choose which available punishments to apply to convicted offenders." Barber at 1171. The trial court's failure to make the findings required by section 775.084(1)(a) is, however, reversible error, even in the absence of objection....

...The State of Florida seeks rehearing of the court's December 3, 1991 opinion in the above-styled case. That opinion reversed and remanded for resentencing based on the trial court's failure, prior to classifying Anderson as an habitual offender, to make the findings required by sections 775.084(1)(a)3. and 4. and 775.084(3)(d), Florida Statutes (1989)....

...We reject this argument on several grounds. First, the habitual offender statute, both now and when Eutsey was decided, states that "each of the findings required as the basis for [an habitual offender] sentence shall be found to exist by a preponderance of the evidence." Section 775.084(3)(d), Fla. Stat. (1989) (emphasis supplied). The statute does not qualify this requirement with regard to the pardoning or setting aside of the predicate convictions *1121 as set forth in section 775.084(1)(a)3....

...that language as urged by the state to qualify the plain requirements of the habitual offender statute. However, it must be acknowledged that the Supreme Court in Eutsey did refer to the requirements for habitual offender classification set forth in section 775.084(1)(a)3....

...Therefore, we hold the court erred in denying the defendant's motion. In view of our holding, it is unnecessary for us to consider the remaining points Lee urges. However, we think his objections to the manner in which he was sentenced as a habitual offender pursuant to section 775.084, Florida Statutes (1979), deserve mention. Should the state again seek to have the defendant sentenced as a habitual offender, the court must determine that the evidence complies with the requirements of section 775.084(1)(a). Additionally, the court must find the enhanced penalty is necessary for the protection of the public and specify in the record the evidence upon which it relied. § 775.084(3)(d)....

...The defendant must be given the opportunity to withdraw the plea and proceed to trial. 3. Should the defendant plead nolo or guilty again, the trial court may in its discretion impose a guideline sentence or an habitual offender term provided that the requirements of section 775.084, Florida Statutes (1993) and Ashley are met....

...We begin again by reaffirming that Pitts' judgment and sentence have been vacated and upon remand: 1. The State will have the opportunity to serve a written notice of intent to habitualize if it desires. 2. The State and the court must follow the provisions of section 775.084 and the requirements of Ashley....

...The written plea was entered with the understanding that on the first count the state would recommend no more than a 20-year sentence, with a 15-year minimum mandatory provision based on the appellant's classification as an habitual violent felony offender ("HVFO") pursuant to section 775.084(4)(b)1, Florida Statutes (1993). On the grand theft count, the state would recommend no more than a concurrent 10-year sentence, with a concurrent 5-year minimum mandatory provision under the HVFO statute. § 775.084(4)(b)3....

...cance and reasonable *1208 consequences" of habitualization, e.g., what the maximum possible penalty provided by law was, and that classification as an HVFO would result in his statutory ineligibility for certain gain-time and early-release credits. § 775.084(4)(e), Fla....

...At resentencing, the appellant would be given the opportunity to withdraw his plea and to proceed to trial if that is his wish. If the appellant pleads nolo contendere or guilty, then the trial court may exercise its discretion to sentence him under the guidelines or to impose an enhanced term pursuant to section 775.084 so long as the requirements of Wilson and Patterson are met....

...Public Defender, Tallahassee, for appellee. *23 PER CURIAM. The state appeals the trial court's sentencing of Steven Geohagen to straight probation despite the explicit finding that Geohagen qualified as a habitual felony offender. The issue raised by the state is whether section 775.084, Florida Statutes, authorizes sentences of straight probation....

...This holding would appear to compel affirmance; however, in adopting the rationale of King, the McKnight decision belies its simplicity, for King, in reality, does not stand for an affirmative answer to the issue raised by the state. Rather, a careful reading of King leads to the conclusion that section 775.084, by its terms, does not authorize sentences of straight probation. To the contrary, according to the King rationale, section 775.084 affords a trial court a number of options. For example, a trial court may apply the statutory criteria and determine a person to be qualified as a habitual felony offender, but the court is not required thereafter to sentence the person as such if the court decides pursuant to subsection 775.084(4)(c) that a habitual offender sentence is not necessary for the protection of the public....

...ence then imposed must comport with sentencing guidelines or departure rules and any failure to do so would be the proper subject of appeal by the state as well as the defendant." 597 So.2d at 315-16. As King explained: It does seem clear that under section 775.084, absent a decision that sentencing as an habitual felony offender is not necessary, any sentence of such an habitualized defendant must be a prison sentence for a term of years not to exceed the maximum sentences allowable. In order to properly sentence a defendant found to be an habitual felony offender to probation or community control, the trial judge would first have to make a decision under subsection 775.084(4)(c) that a sentence as an habitual felony offender was not necessary....

...ines permitted range of 2 1/2 to 5 1/2 years' incarceration. Therefore, it was incumbent on the court to give reasons for this departure. Additionally, we note that nowhere in the record does it appear that the court specifically determined under subsection 775.084(4)(c) that sentencing Geohagen as a habitual offender was not necessary for the protection of the public....

...2d DCA 1992), did the decision in McKnight v. State, 616 So.2d 31 (Fla. 1993), expressly adopt that portion of the opinion in King holding that upon sentencing a habitual offender to community control or probation, the trial court must (1) find pursuant to § 775.084(4)(c) that a sentence as a habitual offender was not necessary; and (2) sentence the offender under the guidelines, setting forth written reasons for downward departure should the guidelines recommendation call for a sentence other than pr...

...OVERTON, Justice. We have for review Reeves v. State, 593 So.2d 232 (Fla. 1st DCA 1991), in which the district court affirmed Reeves' sentence as a habitual violent felony offender and certified the following questions as being of great public importance: 1. Does section 775.084, Florida Statutes (1989), authorize habitual felon sentencing for a criminal defendant who has previously been convicted of a violent offense enumerated in the statute, but who is currently being sentenced for a non-violent offense? 2. If section 775.084, Florida Statutes (1989), authorizes habitual felon sentencing for a criminal defendant who is currently being sentenced for a non-violent offense, does the statute violate the constitutional principles of equal protection, due process, double jeopardy, or ex post facto? Id. at 232. [1] We answer the first question in the affirmative, the second question in the negative, and approve the decision of the district court. In Tillman v. State, 609 So.2d 1295 (Fla. 1992), we recently held that section 775.084(1)(b), Florida Statutes (1989), does not violate the constitutional protections against double jeopardy. In Ross v. State, 601 So.2d 1190 (Fla. 1992), we held that section 775.084(1)(b) does not violate equal protection or due process....

...State, 558 So.2d 1092 (Fla. 5th DCA 1990). The trial court granted an evidentiary hearing on both grounds. The state conceded it had relied on two prior felonies contained in the same judgment of conviction to sentence Freeman as an habitual offender under section 775.084(1)(a). The trial court granted Freeman relief on the first ground and resentenced him to thirty years in prison as an habitual offender under section 775.084(1)(a)1, but it denied relief on the second ground....

...Appellant was sentenced to ten years for a third-degree felony on Count II to run concurrently with Count I. The sentence on a third-degree felony may be increased to a term of years not exceeding ten if the offender is designated a habitual felony offender. § 775.084(4)(a)3, Fla....

...lifies as a habitual felony offender and then it must decide if the defendant will be sentenced as a habitual felony offender. King v. State, 681 So.2d 1136, 1138 (Fla.1996), receded from on other grounds, Carter v. State, 786 So.2d 1173 (Fla.2001); § 775.084(3), Fla....

...As noted above, we think the second step was taken in this case. AFFIRMED. THOMPSON, C.J., and SAWAYA, J., concur. NOTES [1] Powell v. State, 774 So.2d 869 (Fla. 1st DCA 2000); Arnold v. State, 754 So.2d 149 (Fla. 2d DCA 2000); Driver v. State, 710 So.2d 652 (Fla. 2d DCA 1998). [2] See § 775.084(3), Fla. Stat. (1994). [3] § 775.084(4)(c), Fla....

...Appellant then filed a motion for postconviction relief arguing, inter alia, that defense counsel provided ineffective assistance by not informing him that he potentially faced sentencing as an HFO. Appellant alleged that, had defense 1 See § 775.084(1)(a), Fla....

...Salvatore Bennett timely appeals the denial of his rule 3.800(a) motion to correct an illegal sentence. Bennett argued in part that he did not qualify for habitual offender sentencing because his prior convictions did not satisfy the sequential sentencing requirement of section 775.084(5), Florida Statutes (2004)....

...On this direct criminal appeal, we affirm appellant's convictions, albeit not, speaking for myself, without "misgivings and concerns," Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002), regarding our duties as to the habitual offender sentence imposed for possession of cocaine. See § 775.084(1)(a)3., Fla....

...(2006) (authorizing sentencing as a habitual felony offender only if "[t]he felony for which the defendant is to be sentenced ... is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance"); Middleton v. State, 689 So.2d 304, 305 (Fla. 1st DCA 1997) (observing that "[s]ection 775.084(1)(a)3 excludes from habitual offender sentencing the crime of possession of cocaine")....

...Gen., Tallahassee, for appellee. ZEHMER, Judge. Scott Hezekiah Johnson, appellant, seeks review of his sentence as a habitual felony offender following his conviction of burglary of a dwelling and grand theft. Because the trial court failed to make the findings required by section 775.084(1)(a), Florida Statutes (1989), we vacate the sentence and remand for resentencing. We reject appellant's other points on appeal. Appellant first argues that the state's failure to comply with section 775.084(3)(b), Florida Statutes (1989), by filing a notice of intent to seek habitual felony offender sentencing prior to appellant's entry of his nolo contendere plea rendered his sentence illegal....

...The state argues that appellant knew it was going to seek an enhanced sentence under the habitual felony offender statute and therefore its failure to file the notice of intent prior to entry of the plea did not preclude the court from imposing an enhanced sentence. Section 775.084(3)(b), Florida Statutes (1989), states: Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant....

...State, 590 So.2d 517 (Fla. 1st DCA 1991), and Showers v. State, 570 So.2d 377 (Fla. 1st DCA 1990). Appellant's third argument is that the trial court committed reversible error in failing to make the findings required by the habitual offender statute. Section 775.084(1)(a) has been interpreted to mean that: A trial court may impose a habitual offender sentence only by first making the statutorily required findings in a reported judicial proceeding. Parker v. State, 546 So.2d 727 (Fla. 1989). In Walker v. State, 462 So.2d 452, 454 (Fla. 1985), the supreme court noted the fundamental nature of this statutory duty: We hold that the findings required by section 775.084 are critical to the statutory scheme and enable meaningful appellate review of these types of sentencing decisions....

...Rather, the court merely stated that appellant has a history of burglarizing other people's property, and that appellant has been on probation and community control and has even done state time. Because the trial court failed to make the findings required by section 775.084(1)(a), Florida Statutes (1989), we must vacate the sentence and remand to the trial court to determine, in the exercise of its discretion after making the requisite findings, whether the habitual offender statute should be applied to appellant....

...We decline to consider appellant's final argument that even if the trial court had made the required findings they would not be supported by the record. On remand, the state may supplement the record to demonstrate that appellant's prior record satisfies the requirements of section 775.084(1)(a)....

...Further, our review of Appellant's previous filings with this Court establishes that the issue at bar was not previously raised. Therefore, we also conclude that the instant petition is not barred as successive. Appellant argues he should not have been sentenced as a habitual offender pursuant to section 775.084(1)(a)2., Florida Statutes (1993), because he did not meet all of the criteria....

...t trigger the provision of the habitual offender statute which requires a finding that his 1994 offense occurred within five years of his release from a prison sentence or "other commitment" imposed as a requirement of a prior felony conviction. See section 775.084, F.S....

...ions. Since the Appellant was not being temporarily confined for a brief period on a warrant for revocation of parole, his six month commitment to the county jail, which occurred after sentencing, constitutes an "other commitment" as contemplated by section 775.084, Florida Statutes (1993), notwithstanding Girtman....

...The Girtman court determined that a brief holding period in jail awaiting a determination of revocation of parole does not constitute an "other commitment." We hold that Appellant's commitment to county jail for a term of six months which occurred after sentencing does constitute an "other commitment," pursuant to section 775.084, Florida Statutes (1993)....

...s temporary confinement for fifteen days on a parole revocation warrant before being released on his own recognizance pending the Parole Commission's final determination. Lastly, it is important to clarify in this case that the applicable statute is section 775.084, Florida Statutes (1993), which was in effect at the time Appellant *958 committed the crime for which he was habitualized. See Barber v. State, 584 So.2d 128 (Fla. 2nd DCA 1991)(error to impose enhanced sentence where crimes took place prior to the effective date of statutory amendment). The trial court should not have relied on 775.084, Florida Statute (2000), which now includes release from probation or community control....

...However, the order can be affirmed as the right decision even if it was made for the wrong reason. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). Accordingly, the denial of Appellant's Petition for Writ of Habeas Corpus is AFFIRMED. ERVIN and WEBSTER, JJ., concur. NOTES [1] The current version of § 775.084(1)(a)2., F.S....

...ANTOON, Judge. The defendant appeals his judgment and sentence for the crime of possession of cocaine with intent to sell. [1] Specifically, the defendant argues that the trial court erred in adjudicating him to be an habitual offender pursuant to section 775.084, Florida Statutes (1993), and imposing a lien for the services of the public defender without advising him of his right to contest the amount of the lien. We reverse. Section 775.084(1)(a)3 provides for enhanced sentences for those defendants qualifying as habitual offenders under the statute....

...court in Hale was construing the 1991 version of the habitual offender statute. This earlier version of the statute did not contain the provision excluding violations of section 893.13 from consideration for enhanced habitual offender sanctions. See § 775.084(1)(a), Fla....

...se. It has long provided that a fine may be imposed "in addition to any punishment described in s. 775.082." Section 775.082 establishes the general terms of imprisonment for most offenses. Because habitual offender sentencing is imposed pursuant to section 775.084 as an exception to the general penalties in section 775.082, the courts have uniformly held that it is illegal to impose a discretionary fine under section 775.083 in a case in which the rest of the sentence is imposed pursuant to the habitual offender provisions in section 775.084....

...ction 775.083, limiting fines under that statute to cases in which sentences are imposed under section 775.082, plays no role in our analysis. This fine was lawfully imposed under section 893.135 in addition to the term of imprisonment imposed under section 775.084....

...Because we did not hold the fine illegal, but merely determined that the issue required further consideration in the trial court, we conclude there is no conflict requiring en banc consideration. [2] Effective October 1, 2000, the legislature added an explicit reference in the drug trafficking statute to both section 775.084 and section 775.083....

...Sentencing statutes "must be strictly construed according to their letter." Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); Gordon v. State, 745 So.2d 1016, 1019 (Fla. 4th DCA 1999). This fundamental principle guides our resolution of this case. Section 775.084(1)(a)2.b., Florida Statutes, permits the imposition of a habitual offender sentence when the necessary predicate convictions are established and the felony for which the defendant is being convicted was committed: Within 5 years of th...

...that appellant could be convicted as a habitual violent felony offender so long as there were the requisite prior convictions. Appellant asserts that the trial court erred in sentencing him as a habitual violent felony offender under Florida Statute Section 775.084(1)(b), since he could not have been convicted as a habitual felony offender under section 775.084(1)(a). Appellant could not have been convicted as a habitual felony offender under (1)(a) because a prerequisite to such status is that the required convictions under (1)(a), prior to its amendment in 1989, must have been committed in Florida. § 775.084(1)(a)1, Fla. Stat. (1988). [1] Florida Statute Section 775.084 (1988) provided: (1) As used in this act: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that: 1....

...ation. Id. The state correctly points out that the language of the habitual violent felony offender statute requires only that the trial court find that the defendant was "convicted" of the prior offense before his sentencing as a habitual offender. § 775.084(1)(b)1, Fla....

...however, err in imposing consecutive mandatory sentences under the habitual offender act. In Daniels v. State, 595 So.2d 952 (Fla. 1992), the Florida Supreme Court held that a trial court may not impose consecutive mandatory minimum sentences under section 775.084, when the offenses arose from the same criminal incident....

...ouble jeopardy protections nor legislative intent." Clines v. State, 881 So.2d 721, 722 (Fla. 1st DCA 2004). The supreme court disagreed with the First District's conclusion and remanded for resentencing, holding that only one recidivist category in section 775.084, Florida Statutes (2002), [1] may be applied to any given criminal sentence....

...court to resentence Jones in accordance with this opinion. See Hakkenberg v. State, 889 So.2d 935, 937 (Fla. 2d DCA 2004). The petition is denied in part and granted in part. KELLY and VILLANTI, JJ., Concur. NOTES [1] Jones was sentenced pursuant to section 775.084, Florida Statutes (2001)....

...elony based upon Booth's use of a firearm pursuant to section 775.087(1), Florida Statutes (2006). The sentencing range was further enhanced to life based upon the trial court's finding that Booth qualified as a habitual felony offender ("HFO"). See § 775.084(4)(a), Fla....

...This means that Booth's sentencing documents should be corrected on remand to reflect the underlying third degree felony murder charge as a second degree felony with a maximum penalty of fifteen years. With the court's HFO finding, the sentencing range doubled to thirty years on this charge. See § 775.084(4)(a)2., Fla....

...*722 Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant. Charles J. Crist, Jr., Attorney General, and Trish Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee. KAHN, J. Does section 775.084, Florida Statutes (2002), authorize the trial court to sentence a criminal defendant as both a violent career criminal and a habitual felony offender on one count of resisting arrest with violence? We find that such a sentence violates neither double jeopardy protections nor legislative intent....

...le punishments for the same offense, so as `to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.'" 796 So.2d at 1264 (quoting Johnson, 467 U.S. at 499, 104 S.Ct. 2536). Oberst then examined section 775.084(4)(f), which directs: "At any time when it appears to the court that the defendant is eligible for sentencing under this section, the court shall make that determination as provided in paragraph (3)(a)[habitual felony offender], parag...

...Had the Legislature used the conjunctive "and," the statute would have been hopelessly confusing and would have suggested that the trial court must make all three sentencing determinations, a situation that would be impossible on the facts of many cases. Looking at section 775.084(4)(f), we read the word "or" in light of the Legislature's previous directive to the trial court to "make that determination." The phrase "make that determination" refers to a sentence under section 775.084 ("this section") — a sentence that may be affected by any of the enhancement provisions referenced in section 775.084(4)(f). Of course, in the present case, the trial court did as the statute directs and made the sentencing determination as provided in paragraph (3)(a) (habitual felony offender) and paragraph (3)(c) (violent career criminal). Notably, section 775.084(3), in mandatory language, directs that the trial court "shall determine" whether a defendant fits into any of the special sentencing categories provided by the statute....

...ion (3)(b), the trial court "shall determine if the defendant is a *724 three-time violent career criminal;" and under subsection (e)(c), the trial court "shall determine whether the defendant is a violent career criminal...." Thus, in three places, section 775.084(3) directs the trial court to conduct a separate proceeding, but does not limit the trial court to only one determination....

...Subsection (4)(f) of the statute, construed in Oberst, merely reiterates the requirements of subsections (3)(a), (b), and (c), each of which directs the court to conduct separate proceedings and to make "findings required as the basis for such sentence." § 775.084(3)(a)4., (b)4., (c)3., Fla. Stat. (2002). Finally, election of only one of the sentencing alternatives contravenes the actual provisions of section 775.084(4). In the case of a habitual offender, including a habitual violent offender, the court retains discretion as to whether to impose the sentences called for in the subsection. See § 775.084(4)(a), Fla. Stat. (2002) ("The court ... may sentence the habitual felony offender as follows...."); § 775.084(4)(b), Fla. Stat. (2002) ("The court ... may sentence the habitual violent felony offender as follows...."). As to sentencing for three-time violent felony offenders and violent career criminals, however, the statute speaks in mandatory terms. See § 775.084(4)(c)1., Fla. Stat. (2002) ("The court ... must sentence the three-time violent felony offender to a mandatory minimum term of imprisonment as follows...."); § 775.084(4)(d), Fla....

...a defendant qualifies under one or both of these prongs. This further militates against a construction that would require the trial court to elect no more than one sentencing designation under the statute. In our view, the entire statutory scheme of section 775.084 readily contemplates, in the case of a single criminal charge, a sentence under the habitual felony offender provision, with the mandatory minimum term provisions provided for by the violent career criminal designation....

...followed by five years of drug offender probation. *1192 Written notice of the state's intent to seek habitual offender penalties must be provided to a defendant and his counsel prior to his plea or, in the event of a trial, prior to sentencing. As Section 775.084(3)(a)2, Florida Statutes (1997) states: Written notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant....

...en notice of its intent to seek habitual offender penalties. Similarly, Massey is not on point, because Massey's attorney had received the written notice, the purpose of which is "to allow the preparation of a submission on behalf of the defendant." § 775.084(3)(a)2, Fla....

...The adjudication in 89-36248-A was properly considered as a prior conviction for purposes of applying habitual offender sentencing in 91-13007; both the offense and conviction occurred within five years prior to the offenses and convictions in 91-13007. § 775.084(1)(b)(2), Fla....

...lature amended the habitual offender statute. The analysis would be different for offenses committed on or after the effective date of the 1993 act. See Rhodes v. State, 704 So.2d 1080, 1083 (Fla. 1st DCA 1997); ch. 93-406, §§ 2, 44, Laws of Fla.; § 775.084(5), Fla....

...Tarpley, Assistant Attorney General, Tampa, for Appellee. *1104 BLUE, Chief Judge. Ekow Tyler appeals his habitual offender sentences for possession of cocaine and delivery of cocaine. The State concedes that a habitual offender sentence is not permitted for possession of cocaine. See § 775.084(1)(a)(3), Fla....

...(2001) (reclassifying battery upon a law enforcement officer from a misdemeanor to a felony of the third degree). The trial court orally pronounced an enhanced sentence of fifteen years with a ten-year minimum mandatory as a violent career criminal pursuant to Section 775.084(4)(d)3, *377 Florida Statutes (2001), as well as a concurrent ten-year sentence as a habitual violent felony offender. [1] § 775.084(4)(b)3, Fla....

...Y / MINIMUM PROVISIONS: CATEGORY SPECIAL PROVISION DESCRIPTION SPECIFICATION Felony Offender The defendant is adjudicated a habitual felony offender and has been ____ sentenced to an extended term in accordance with the provisions of Florida Statute 775.084(4)....

...The requisite findings by the court are set forth in a separate order stated on the record in open court. Felony Offender The defendant is adjudicated a violent career criminal and has been 10 YEARS MINIMUM sentenced to an extended term in accordance with the provisions of MANDATORY Florida Statute 775.084(4)....

...iminal classification alone. Our original opinion notes that in its oral pronouncement, the trial court sentenced defendant to "an enhanced sentence of fifteen years with a ten-year minimum mandatory sentence as a violent career criminal pursuant to section 775.084(4)(d)3, Florida Statutes (2001), as well as a concurrent ten-year sentence as a habitual violent felony offender. § 775.084(4)(b)3, Fla....

...The written sentence recognizes and corrects this error. Second, the adjudication and other language found in the first "Special Provision Description" poses no threat to defendant should he re-offend. Defendant does qualify as a habitual felony offender under Florida's recidivism sentencing law. See § 775.084(1)(a), Fla....

...In fact, as explained in Clines v. State, 912 So.2d 550, 559 (Fla.2005), "anyone whose pattern of recidivism meets the stringent requirements for designation as a violent career criminal will also qualify for designation as a habitual felony offender." Compare § 775.084(1)(d)(violent career criminal), Fla. Stat. (2002), with § 775.084(1)(a), Fla....

...mposed on a defendant for the offense of *379 which the defendant has been adjudged guilty."); Judge, 596 So.2d at 78 ("`Habitual offender' is merely a category or classification."). See also Clines, 912 So.2d at 553-555 (explaining the structure of section 775.084)....

...oo broadly. Clines deals solely with designations accompanied by sentences, and does not stand for the proposition that either a dual or improper designation alone is reversible. Rather, Clines prohibits applying more than one recidivist category in section 775.084, Florida Statutes to a single criminal sentence....

...offender (HVFO) and enhancing his sentence on that basis. The State presented evidence of McCoy's prior conviction for aggravated assault. However, only aggravated assault with a deadly weapon is an enumerated predicate felony for the HVFO statute. § 775.084(1)(b)(1)(g), Fla....

PER CURIAM. Affirmed. See § 775.084(4)(e), Fla....

...On remand the lower court vacated the revocation of probation and terminated probation. We affirm the denial of appellant's rule 3.800(a) motion as the conviction in case 96-10178 was not vacated. Appellant's prior convictions satisfy the sequential conviction requirement of the habitual offender statute. § 775.084(5), Fla. Stat. (2004). However, affirmance is without prejudice for appellant to raise, in another rule 3.800(a) motion, the issue of whether his probationary term ended within five years of committing the new offenses pursuant to section 775.084(1)(a)2.b., Florida Statutes....

...Daniels, Public Defender, and Abel Gomez, Asst. Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., and Michelle A. Konig, Asst. Atty. Gen., Tallahassee, for appellee. BARFIELD, Judge. Frank Edward Cooper was sentenced as an habitual felony offender pursuant to section 775.084(1)(a), Florida Statutes (1991), on the basis of two prior felony convictions for separate crimes arising from a single incident in 1989....

...In my view, because Cooper's two felony offenses relied on for the habitual felony offender sentence occurred in the same incident, the majority opinion misapplies Barnes and errs in holding that Barnes requires approval of the habitual offender sentence in this case. I would construe section 775.084(1) as requiring two separate incidents, so that absent two separate incidents giving rise to the two felony convictions being relied on, the requirements of section 775.084(a)(1) are not satisfied. [1] Accordingly, I would reverse and remand for resentencing in accordance with the sentencing guidelines. NOTES [1] It is perhaps noteworthy that the supreme court's construction of section 775.084(1) in Barnes eliminating the requirement of two sequential convictions and sentences was contrary to legislative intent, since the legislature amended that section at its next session by adding new subsection (5) to provide that: In o...

...In 1993, however, the legislature eliminated basic gain time for all offenders. See § 944.275(6)(a), Fla. Stat. (1994) (eliminating basic gain time for offenses committed on or after January 1,1994). Nevertheless, offenders, including habitual felony offenders, remained eligible for incentive gain time. See § 775.084(4)(e), Fla....

...We continue to agree with Ferguson and Bam that the elimination of basic gain time for all offenders nullified Ashley’s requirement to advise offenders that habitualization may affect the possibility of early release. When the defendant committed his offenses in 2007, section 775.084(4)(k)l., Florida Statutes (2007), still provided that “a habitual felony offender ......

...In this, his third bite at the apple, the defendant again claims that his habitual offender sentence is illegal. He argues this time that a prior conviction in Case No. 95-19638, which was within five years of his current offense, did not meet the requirements of section 775.084(5), Florida Statutes (2003)....

...On rehearing, the court in Richardson rejected the State's suggestion that it had overlooked the provision in the habitual offender statute which states that placing a defendant on probation without an adjudication constitutes a prior conviction. See § 775.084(2), Fla....

...It found that although placing a defendant on probation without an adjudication may be considered a prior conviction, it cannot be considered a sequential sentence. In McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), the Second District disagreed and held that a sentence, as referred to in section 775.084, Florida Statutes, includes the sanction of probation....

...for habitualization, but not consider the order to be a sentence when determining whether the prior convictions were sequential? We affirm and certify conflict with Richardson. AFFIRMED; CONFLICT CERTIFIED. ORFINGER and TORPY, JJ., concur. NOTES [1] Section 775.084(2), Florida Statutes (2003), provides: (2) For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.

...o uses minors to carry drugs. He argues that he was not charged with or convicted of a crime based upon either of these facts, therefore, evidence tending to prove either of them was inadmissible. He also contends that the habitual offender statute, Section 775.084, Florida Statutes (Supp....

...Akbar further argues that the statute is unconstitutionally vague in that it does not curb the judge's discretion in imposing habitual felony offender sentencing. We do not agree. The statute sets forth certain criteria that a defendant must meet before an enhanced penalty may be applied. § 775.084(1), Fla. Stat. (Supp. 1988). The statute moreover provides the particular sentences to be applied, depending upon the degree of the felony the defendant committed. § 775.084(4), Fla....

...a habitual offender. At the sentencing hearing, the court stated: [THE COURT:] The State has filed their Notice of Enhancement and has proven to the Court that Mr. Batista qualified to be sentenced as a Habitual Offender pursuant to Florida Statute 775.084....

...Certified copies of his priors have been introduced and testified to by the fingerprint person, who compared those prior fingerprints with the standards he took here in court the last time we were present. . . . . The Court is going to find that Mr. Batista is a Habitual Offender, pursuant to 775.084.... Defendant is correct that the court did not make the detailed findings contemplated by paragraph 775.084(1)(a), Florida *23 Statutes (1993)....

...ison, and the trial court made a specific finding on fingerprint comparison, quoted above. The defense also objected that some of the convictions relied on by the state occurred more than five years prior to the date of the 1995 current offense. See § 775.084(1)(a)2, Fla.Stat....

...However, certified copies of other convictions were introduced into evidence and plainly reveal that defendant has the necessary qualifying convictions required by the statute. Even though the trial court should have made findings on each of the statutory elements contained in paragraph 775.084(1)(a), the facts regarding the prior convictions "are easily discernible from the record and allow meaningful appellate review." Herrington v....

...for a new sentencing hearing. The jury found Moore guilty of attempted first-degree murder with a firearm; thus, her sentence was enhanced to a life felony under section 775.087(1)(a), Florida Statutes (1989). Because the habitual offender statute, section 775.084, makes no provision for the enhancement of a life felony, the trial court erred in sentencing Moore as a habitual offender for that offense....

...Therefore, we vacate this sentence and remand for resentencing *927 pursuant to the sentencing guidelines. As to the sentence for the shooting within a building conviction, we conclude that the trial court failed to make the specific findings on the record pursuant to section 775.084, Florida Statutes (1989), to support the habitual felony offender sentence....

...[1] However, defense counsel simply made a general statement agreeing that she could be classified as a habitual felony offender. It is impossible for this court to ascertain whether the requirements for a habitual felony offender sentence were met. See § 775.084(1)(a), Fla....

...offender and a habitual violent offender. Based on the Florida Supreme Court's decision in Clines v. State, 912 So.2d 550 (Fla. 2005), we agree and reverse for further proceedings. In Clines, the Court applied the rule of lenity and concluded that "section 775.084 is ambiguous about whether multiple recidivist categories may be applied to a single criminal sentence." Clines, 912 So.2d at 560. The Court further held "that the recidivist categories are designed to be hierarchical, not complementary ... and only one recidivist category in section 775.084 may be applied to any criminal sentence." Clines, 912 So.2d at 559-60....

convictions were not sequential as required by section 775.084(5). 3 However, in his negotiated

...In Hale , the defendant was convicted for separate charges for the (1) sale and (2) possession of the same cocaine. Hale, 630 So.2d at 522 . The sentencing scoresheet provided a recommended range of four- and-one-half to five-and-one-half years. Id. at 523 . However, under section 775.084(4)(b), Florida Statutes (1991), because Hale was found to be a habitual violent felony offender, the trial court had the discretion to enhance Hale’s sentence to a maximum of thirty years per count, with each count carrying a ten-year minimum mandatory sentence....

...egislature did not empower trial courts to run enhanced sentences consecutively to one another when the charges arise out of the same criminal episode. Id. at 524 . *1031 The Court examined the legislative intent, noting that: [B]y enacting sections 775.084 and 775.0841, Florida Statutes (Supp.1988), the legislature intended to provide for the incarceration of repeat felony offenders for longer periods of time....

..., and violent career criminal statute are enhanced sentences within the meaning of Hale because they provide for sentencing in excess of the statutory máxi-mums set forth in section 775.082, Florida Statutes. The habitual offender statute, found in section 775.084(l)(a), states: “ ‘Habitual felony offender’ means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a) .......

...: 1. In the case of a life felony or a felony of the first degree, for life. 2. In the case of a felony of the second degree, for a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a term of years not exceeding 10. § 775.084(4)(a), Fla. Stat. (2005) (emphasis added). The habitual violent felony offender statute, found in section 775.084(l)(b), provides: ‘“Habitual violent felony offender’ *1032 means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(b) .......

...In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. § 775.084(4)(b). The violent career criminal statute, found in section 775.084(l)(d) provides: “ “Violent career criminal’ means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(d).......

...In the case of a felony of the second degree, for a term of years not exceeding 40, with a mandatory minimum term of 30 years’ imprisonment. 3. In the case of a felony of the third degree, for a term of years not exceeding 15, with a mandatory minimum term of 10 years’ imprisonment. § 775.084(4)(d)....

...775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively.” § 921.0024(2) (emphasis added). The three-time violent felony offender statute, found in section 775.084(l)(e), provides: “ ‘Three-time violent felony offender’ means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in paragraph (4)(c).......

...In the case of a felony of the second degree, to a term of imprisonment of 15 years; or d. In the case of a felony of the third degree, to a term of imprisonment of 5 years. 2. Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law.[ 7 ] § 775.084(4)(c) (emphasis added)....

...of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence. (c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law....

...Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Appellant contends that his sentence as a habitual violent felony offender must be reversed because the trial court failed to find, as required by sections 775.084(1)(b)3 and 4, Florida Statutes (1989), that his prior conviction for robbery had not been pardoned or set aside....

...1st DCA 1992) and reversed the defendant's sentence as a habitual offender. The Anderson court stated: However, it must be acknowledged that the Supreme Court in Eutsey did refer to the requirements for habitual offender classification set forth in section 775.084(1)(a)3....

...ions provided by the state have been pardoned or set aside? *583 Id. at 1121. In Simon v. State, 589 So.2d 381 (Fla. 4th DCA 1991), this court held: We agree with Simon's contention that the findings required by the habitual felony offender statute, section 775.084(1)(a)3, 4, Florida Statutes (1989), were not met. A trial court must specifically make the findings required by section 775.084(1)(a) before sentencing a defendant as a habitual felony offender. Id. at 382. Based on this court's decision in Simon and the First District Court of Appeal's decision in Anderson, we hold that the trial court erred when it failed to make findings pursuant to section 775.084(1)(b)3 and 4. [1] We decline appellant's invitation to reconsider this court's previous opinions declaring section 775.084, Florida Statutes (1989), as amended by Chapter 89-280, Laws of Florida, constitutional and not violative of the single subject rule....

...Accordingly, we reverse appellant's sentence as a habitual offender and remand this matter to the trial court for resentencing. On remand, the trial court may again sentence appellant as a habitual offender upon making findings supported by the evidence pursuant to section 775.084(1)(b)....

...years as a habitual violent felony offender to be served consecutively to case number 90-998. Schneider argues that the trial court erred in sentencing him as a habitual violent felony offender in case numbers 90-998 and 90-250. He argues that under section 775.084(2), Florida Statutes (1989), [1] his youthful offender sentence in case number 85-426 could not be used as a predicate offense because he was on community control rather than on probation when he committed the new offenses, citing Overstreet v....

...Here, Schneider was adjudicated guilty of the offense, unlike the defendants in those cases. Therefore, the trial court correctly found that that the attempted sexual battery could serve as a predicate offense for violent habitual offender sentencing. § 775.084(1)(b)1, Fla....

...eet for counts I and III. We find no error in the sentences imposed in case number 90-250 and the sentences imposed for counts II and IV in case number 90-998. Affirmed in part, reversed in part, and remanded. BLUE and FULMER, JJ., Concur. NOTES [1] Section 775.084(2), Florida Statutes (1989), states: "For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sente...

...Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. The appellant, Willie J. Bell, challenges the trial court's judgment and sentence imposed pursuant to the habitual felony offender statute, § 775.084, Fla. Stat. (1991), contending that the trial court erred in failing to follow the procedural requirements of section 775.084(1)....

...a habitual offender. The appellant filed a timely notice of appeal. The appellant contends that the trial court erred in sentencing him as a habitual offender without making the findings that he had the predicate felony convictions as required under section 775.084(1). We disagree. In Spriggs v. State, 615 So.2d 828 (Fla. 4th DCA 1993), the Fourth District held that a defendant may knowingly and voluntarily waive, in a plea agreement or otherwise, the right to express findings under section 775.084(3)....

...See also Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991). In the present case, the appellant expressly agreed to be sentenced as a habitual felony offender as part of his plea agreement and knowingly and voluntarily waived the procedural requirements of section 775.084....

...n Davis v. State, 10 So.3d 176, 177-78 (Fla. 5th DCA 2009). Sufficiency of the Evidence to Prove Eligibility for HFO Sentencing Facts The State filed an amended notice of intent to seek HFO classification and enhanced sentences for Brown pursuant to section 775.084, Florida Statutes, based on two prior felony convictions. Before Brown chose to represent himself at the trial, court-appointed counsel moved to preclude HFO classification, citing language in section 775.084(l)(a)2.b., which requires in pertinent part that the felony (for which the defendant is to be sentenced) be committed “within 5 years of defendant’s release from a prison sentence ......

...munity, and that it was necessary for the protection of the public to sentence him as an *145 HFO. The judge adjudicated Brown guilty and imposed HFO sentences of 30 years’ incarceration (Count One) and 10 years’ incarceration (Count Three). Law Section 775.084, Florida Statutes, sets out the criteria for HFO classification....

...The language qualifying a defendant as an HFO — if the felony for which he or she is to be sentenced occurred within five years of release from “lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction of a felony or other qualified offense” — appears in section 775.084(l)(a)2.b....

...Butterworth, Atty. Gen., Tallahassee, and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellee. ON MOTION FOR REHEARING PER CURIAM. Appellant Richard Earl Rankin was declared to be and sentenced as a habitual felony offender. In so doing the trial court applied section 775.084(1)(a), Florida Statutes (1989), which permitted enhancement of the sentence upon proof the defendant "has previously been convicted of any combination of two or more felonies in this state or other qualified offenses." Rankin admits to one prior felony conviction from Florida and one from California, the latter satisfying the statutory definition of "qualified offense." § 775.084(1)(c), Fla....

...If not — that is, if the same sentence could have been imposed under the prior version of the statute — resentencing is not required. Burton v. State, 616 So.2d 7 (Fla. 1993); Miffin v. State, 615 So.2d 745 (Fla. 2d DCA 1993). The legislature twice amended section 775.084 in the last decade. Prior to October 1, 1988, a "habitual felony offender" was defined as someone with either one prior Florida felony conviction or convictions for two first degree misdemeanors or other "qualified offense[s]." § 775.084(1)(a)1, Fla. Stat. (1987). "Qualified offenses" included out-of-state convictions provided they were punishable by at least one year in prison or were "equivalent in penalty to a misdemeanor of the first degree." § 775.084(1)(c)....

...lified offenses" [ emphasis ours ]. We interpret this to allow habitualization upon proof of one Florida felony plus one out-of-state "qualified offense." Thus, Rankin's prior record was sufficient under the 1989 amendment. However, this revision of section 775.084 was coupled with enactments relating to the repossession of motor vehicles, which the supreme court in Johnson deemed "a very separate and distinct subject[]." 616 So.2d at 4....

...Molfetto was adjudicated guilty and received an enhanced sentence as a violent career criminal (VCC). In his motion, Molfetto claims his sentence is illegal because he does not have the requisite felonies to be sentenced as a VCC. Specifically, he claims that he does not qualify to be sentenced as a VCC pursuant to section 775.084(4)(c), Florida Statutes (1999), because the record does not show that he was convicted of aggravated assault in New York. The trial court concluded that Molfetto met the criteria required to be sentenced as a VCC whose primary offense was a second-degree felony because he was properly found to have three prior qualifying convictions. See § 775.084....

...year terms of imprisonment. In determining Barnhill to be an habitual offender, the trial court used offense 1, the April, 1983 conviction, as the predicate offense. [2] Barnhill was sentenced under the 1977 version of the habitual offender statute. Section 775.084(1)(a)1, Florida Statutes (1977) provides that a defendant could be designated an habitual felony offender if the court found that the defendant had "[p]reviously been convicted of a felony in this state." Section 775.084(1)(a)2 only required that "[t]he felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony ...." § 775.084(1)(a)2, Fla....

...dicate offense prior to committing the second offense. Rather, the statute only required the trial court to find that the defendant committed the offense that he is being sentenced as habitual offender within five years of the predicate offense. See § 775.084(2), Fla....

...See, e.g., Barnes, 595 So.2d at 24 (holding that sequential convictions were not required by the 1988 version of the habitual offender statute). Following Barnes, subsection (5) was added to the habitual offender statute by the Legislature in 1993. Section 775.084(5), Florida Statutes (1993), provides: In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenc...

...NOTES [1] We summarily affirm the denial of Barnhill's motion under rule 3.850 as untimely. [2] At the time of Barnhill's conviction, the habitual offender statute required only one prior offense in order to classify a defendant as an habitual offender. See § 775.084, Fla....

...Albert Steven Coleman challenges his judgments and sentences for one count of delivery of cocaine, two counts of possession of cocaine, and one count of possession of drug paraphernalia. We affirm his convictions. However, we reverse his habitual felony offender sentences on the two counts of possession of cocaine. Section 775.084(1)(a)(3), Florida Statutes (2003), precludes sentencing a defendant as a habitual felony offender for violating section 893.13 relating to purchase or possession of a controlled substance....

...It is evident that, at the time of defendant's plea in 1991, counsel and the court were under the impression that the case was governed by the 1989 version of the HVO statute. Under the 1989 statute, one of the qualifying HVO offenses was aggravated battery. See § 775.084(1)(b)1.k., Fla....

...On the basis of that *65 predicate offense, defendant was adjudicated an HVO. Defendant had no other qualifying HVO offenses. In reality, however, the wrong statute was applied to the defendant. The defendant committed his crimes on August 4, 1989. The applicable version of the HVO statute was section 775.084, Florida Statutes (Supp.1988)....

...The next issue is what remedy to apply given the lengthy time delay since the original plea. Defendant argues that he should be resentenced under the sentencing guidelines. We disagree. Defendant qualifies as an ordinary habitual felony offender (HO) under the 1988 statute. See § 775.084(1)(a), Fla....

...New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We have previously held that Apprendi and Blakely do not apply to recidivism statutes such as our HFO statute, section 775.084, Florida Statutes....

...entenced to 8 years as an habitual offender. Green filed the instant motion in January 1992, alleging that: 1) her sentence was outside the guidelines, 2) the trial court sentenced her as an habitual offender without considering a PSI as required by section 775.084(3)(a), and 3) trial counsel was ineffective for failing to appeal despite a request that he do so....

...Because the order did not inform Green that she had 30 days in which to appeal, this court granted a belated appeal in December 1992. The first ground alleged is without merit, in that habitual offender sentences are not subject to the guidelines. § 775.084(4)(e), Fla....

...hat he qualifies for enhanced sentencing. Walters was convicted after a jury trial of a strong-arm robbery committed on September 10, 1999. The State served notice of its intention to seek enhanced sentencing as a violent career criminal pursuant to section 775.084(1)(d) and (4)(d), Florida Statutes....

...The trial court sentenced Walters as a violent career criminal to a minimum mandatory term of thirty years in prison, to be followed by ten years probation. Walters contends the trial court erred by sentencing *484 him as a violent career criminal, pursuant to section 775.084(1)(d), Florida Statutes (1999)....

...However, the attempted robbery committed by Walters in 1990 (for which he was released in 1999) must also qualify as a forcible felony as described in section 776.08 in order for Walters to be sentenced as a violent career criminal. This is because section 775.084(1)(d) also contains a time requirement—it requires the new offense to be committed within five years of the defendant's last conviction for an enumerated felony or within five years of his release from the sentence being served for an enumerated felony....

...Finally, the rule of lenity directs interpretation of any ambiguity to the benefit of the defendant. § 775.021, Fla. Stat. (2000). Accordingly, we vacate the violent career criminal sentence and remand for resentencing. REVERSED and REMANDED. PETERSON, J., concurs. SAWAYA, J., concurs specially without opinion. NOTES [1] § 775.084(1)(b)1, Fla. Stat. (1999). [2] § 775.084(1)(c), Fla....

criminal pursuant to section 775.084, Florida Statutes (2017). Under section 775.084, a trial court “shall

...State, 820 So.2d 407 (Fla. 2d DCA 2002), as it relates to whether the trial court can designate a defendant as a habitual violent felony offender based on prior convictions that were entered on the same day. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Section 775.084, Florida Statutes (1993), [1] entitled in pertinent part "Habitual felony offenders and habitual violent felony offenders," sets forth the requirements for a defendant to be designated either as a "habitual felony offender" (HFO) or a "habitual violent felony offender" (HVFO) and the enhanced punishments as a result of a defendant qualifying for either designation. § 775.084, Fla....

...Ponton received three consecutive life sentences. In addition, as Ponton's record indicated that he had committed prior violent felonies in 1981 (robbery with a deadly weapon and kidnapping), the trial court also sentenced Ponton as an HVFO pursuant to section 775.084....

...ual Violent Felony Offender based on predicate convictions that occurred on the same day, the defendant fails to state a claim for relief. There is no sequential sentencing requirement for a *73 Habitual Violent Felony Offender under Florida Statute 775.084(b). However, none of the cases listed by the defendant were qualifying predicate convictions for sentencing under Fla. Stat. 775.084(b)....

...We affirm as to the remaining claims without comment. Ponton, 16 So.3d at 918. Ponton sought this Court's discretionary review, asserting that the above decision conflicts with Rutherford. [4] ANALYSIS In order to resolve the conflict at issue, we first undertake an in-depth review of section 775.084....

...Ponton challenges whether these prior offenses could be properly used as predicate convictions for the HVFO sentencing because the sentences for armed robbery and kidnapping were part of the same sentencing procedure, and thus, he contends, they did not satisfy the sequential conviction requirement of section 775.084(5). The postconviction court denied this claim, holding that "[t]here is no sequential sentencing requirement for a Habitual Violent Felony Offender under Florida Statute 775.084(b)." The district court affirmed and reiterated this statement....

...However, in Rutherford, 820 So.2d at 407-08, the Second District reached a contrary result on this same question of law. Because the question involves an issue of statutory construction guided by legislative intent, we begin with the relevant statutory provisions of section 775.084, which set forth the requirements for sentencing a defendant as a habitual violent felony offender (HVFO) and a habitual felony offender (HFO). In order to be classified as an HVFO, the court must determine that the defendant committed at least one prior felony that is specifically enumerated by statute. Section 775.084(1)(b) states that in order to qualify as an HVFO, the trial court must find: 1....

...The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this section; and 4. A conviction of a crime necessary to the operation of this section has not been set aside in any postconviction proceeding. § 775.084(1)(b), Fla....

...This is different from the requirements of the HFO provision, which requires that a trial court find "[t]he defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses," among other requirements. § 775.084(1)(a)1., Fla....

...Thus, a trial court may sentence a defendant as an HVFO based on only one specified prior violent felony conviction, whereas in order to sentence a defendant as an HFO, a court must find that the defendant committed two or more prior felonies of any type. Section 775.084(5) provides for the sequential conviction requirement....

...Specifically, this section requires, "In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony." § 775.084(5), Fla. Stat. (1993). While section 775.084(5) applies to both HFO and HVFO sentences, the application of the sequential conviction requirement differs between an HFO and an HVFO sentence, since an HVFO sentence requires only one prior specified conviction....

...ual offender sentence was illegal because it was based on predicate felony offenses that did not satisfy the sequential conviction requirement in the habitual offender statute. Bover, 797 So.2d at 1247. Specifically, this Court recognized that under section 775.084(5), the "court must have imposed [the] sentence[s] for the two prior convictions separately from each other," i.e., that although sentencing for the two unrelated crimes could take place on the same day, the sentences could not be part of the same sentencing proceeding....

...[5] As is clear from comparing the requisite predicate felonies for HFO and HVFO, an HFO designation requires that the defendant be previously convicted of two or more felonies, while an HVFO designation can be met with only one prior felony conviction, so long as that conviction is specifically enumerated in section 775.084(1)(b)1. Thus, as one conviction is sufficient for an HVFO designation, the application of section 775.084(5) differs, permitting a defendant to be sentenced as an HVFO so long as the prior violent felony conviction was entered prior to the current offense....

...2d DCA 2010) (holding that the sequential conviction requirement did not apply to the defendant's sentencing because his crimes were committed prior to effective date of that provision); Bunch v. State, 976 So.2d 1190 (Fla. 5th DCA 2008) (addressing how section 775.084(5) applies to an HFO sentence); Walker v....

...4th DCA 2003) (addressing how the sequential conviction requirement applies to an HFO sentence); Gordon v. Moore, 832 So.2d 880, 881 (Fla. 3d DCA 2002) (addressing how the sequential conviction requirement applies to an HFO sentence). It is important to stress that the first part of subsection 775.084(5) applies to both HFO and HVFO sentences in that both require that to be "counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense. " However, the second part of section 775.084(5), which also requires that the prior felony be " sentenced separately from any other felony conviction that is to be counted as a prior felony, " clearly applies only to an HFO sentence, which requires two qualifying felonies. In Ponton, the Third District stated, "There is no sequential conviction requirement for an adjudication as an HVFO." Ponton, 16 So.3d at 918. This sentence from the opinion may be misread to imply that both the first and second parts of section 775.084(5) do not apply to HVFO sentences, which would be incorrect. We disapprove this language and instead emphasize that section 775.084(5) still applies to HVFO sentences....

...disapprove the decision in Rutherford. It is so ordered. CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. NOTES [1] For purposes of this analysis, we rely upon the 1993 version of section 775.085 because the 1995 version of section 775.084 was amended by ch....

...3 (Fla. 2010); Thompson v. State, 990 So.2d 482, 487 n. 1 (Fla.2008). [5] The Court did not use the term "habitual felony offender" but used only the term "habitual offender." However, in discussing Bover's sentence, the Court recognized that under section 775.084(4)(a)3., the statutory maximum for the offense that Bover committed was ten years rather than five years. Bover, 797 So.2d at 1248. Section 775.084(4)(a) applies only to "habitual felony offender," while section 775.084(4)(b) applies to "habitual violent felony offender."

...Finally, it was admitted at oral argument that calling the technician would have only further "prosecut[ed] our own client." Defendant's third argument is that burglary of an unoccupied dwelling does not constitute a forcible felony that would permit his sentence as a "violent career criminal" under section 775.084(1)(d), Florida Statutes (1999)....

...State, 891 So.2d 1215 (Fla. 3d DCA 2005)(adopting the reasoning of McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003)). These cases held that the sanction of probation may count towards the calculation of the sentence under the habitual felony offender statute, section 775.084, Florida Statutes....

...Resentencing is not required. AFFIRMED IN PART; REMANDED WITH DIRECTIONS. ORFINGER, J., and PLEUS, JR., R., Senior Judge, concur. NOTES [1] Although the court in Massey was dealing with the 1989 statute, the 2007 version applicable to Moore contains the same language. See § 775.084(3)(a)2., Fla....

...nhanced sentence.” However, the written sentencing order for the burglary count stated that: The Defendant is adjudicated a habitual felony offender and has been sentenced to an extended term in accordance with the provisions of section 775.084(4)(a), Florida Statutes. The  requisite findings by the Court are set forth in a separate order or stated on the record in Open Court. (emphasis added). Section 775.084, Florida Statutes, states that a “habitual felony offender” is “a defendant for whom the court may impose an extended term of imprisonment.” § 775.084(1)(a), Fla. Stat. (2015) (emphasis added). Section 775.084 also states that the trial “court must sentence the defendant as a habitual felony offender . . . unless the court finds that such sentence is not necessary for the protection of the public.” § 775.084(3)(a)6., Fla....

...Defense counsel immediately replied, "Judge, my client knew this was coming as of about five minutes ago, but we've discussed the case and we don't feel that we need to waste the Court's time with a trial just because he's been noticed." Thompson then entered his pleas. Section 775.084(3)(b), Florida Statutes (1993), provides, "Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a subm...

...are so inconsequential that they do not require vacating the habitual felony offender sentence. In Massey v. State, 609 So.2d 598, 600 (Fla.1992), the supreme court held that a trial court's failure to strictly comply with the notice requirement of section 775.084(3)(b) is subject to the harmless error analysis....

...At resentencing, Thompson should be given the opportunity to withdraw his plea and proceed to trial if he desires. Should Thompson plead no contest or guilty, the trial court may in its discretion resentence him under the guidelines or impose a habitual felony offender sentence if the requirements of section 775.084 and Ashley are met....

...Striking these three convictions does not affect the appellant's sentencing range so no resentencing is necessary based on this error. In sentencing the appellant for the Wendy's robbery, after proper notice by the state of intent to seek sentencing enhancement under section 775.084, Florida Statutes (1993), the trial court imposed habitualized sentences....

...93-12700 and remand it to the trial court to allow the appellant to withdraw his plea. Bell v. State, 624 So.2d 821 (Fla. 2d DCA 1993). Should the appellant plead nolo or guilty, the trial court may in its discretion resentence him under the guidelines or impose a habitual offender term if the requirements of section 775.084 and Ashley are met....

...fense. Where it can be shown that the appropriate predicate felonies do not exist as a matter of law from the face of the record, a habitualization can be challenged through a rule 3.800(a) motion. Bover v. State, 797 So.2d 1246, 1248-49 (Fla.2001). Section 775.084(1)(a)1., Florida Statutes (1995), requires two or more predicate felonies as a prerequisite to habitualization....

...See True v. State, 564 So.2d 1104 (Fla. 4th DCA 1990) (opinion on motion for clarification). With respect to the habitual felony offender sentence in Case 3, that sentence is improper because the statutory requirement of two prior convictions was not met. § 775.084(1), Fla....

...As noted above, the appellant was adjudicated guilty in Case 1 and Case 2 on the same date. We believe that the word "conviction" as used in the habitual felony offender statute should be given its usual meaning of an adjudication of guilt, unless the circumstances of section 775.084(2) apply....

...concurrently. As contemplated by the plea agreement, the appellant was treated and sentenced as a habitual violent felony offender on the burglary charge as to which he received a nine year sentence, making him ineligible for release for five years. § 775.084(4)(b)(3), Fla. Stat. (Supp. 1988). The habitual violent felony offender status was based on the robbery conviction. All convictions and sentencings occurred on the same date. The habitual violent felony offender designation in section 775.084 as amended in 1988 requires that the defendant have been previously convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for one of ten enumerated offenses....

...bbery, in five separate cases consolidated for purposes of appeal. We affirm appellant's convictions and sentences in all respects, and in doing so, write to discuss appellant's challenge to the constitutionality of the Habitual Felony Offender Act, Section 775.084, Florida Statutes, and to distinguish this court's recent opinion in Cecil B. Johnson v. State, 589 So.2d 1370 (Fla. 1st DCA 1991). In Cecil B. Johnson, this court held Chapter 89-280, Laws of Florida, amending section 775.084, the habitual felony offender statute, a violation of the one-subject rule of the Florida Constitution....

...served as a basis for his classification as an habitual violent felony offender, a 1987 conviction for aggravated battery, was added by Chapter 89-280 to the list of offenses which will support classification as an habitual violent felony offender. § 775.084(1)(b)1.k....

...Walter Bernard Campbell appeals the sentence imposed on him as a violent career criminal ("VCC"). We remand for a new sentencing proceeding. Defendant-appellant Campbell was convicted of attempted robbery and burglary with an assault and battery. At sentencing the State sought to have the defendant classified as a VCC. See § 775.084(1)(d), Fla. Stat. (2000). [1] The State had to establish (among other things) that the primary *1094 felony offense for which the defendant is to be sentenced was committed within five years after the defendant's release from prison. See id. § 775.084(1)(d)3.a....

...The trial court revoked appellant's probation and sentenced him to six years in prison, as an habitual felony offender, giving appellant appropriate credit for time previously served. It is this 6-year sentence to which appellant objects. According to appellant, Section 775.084(4)(d), Florida Statutes (1989), prohibits the imposition of an increased sentence for violation of probation over an original sentence imposed under the habitual offender statute. § 775.084, Fla. Stat. (1989). Section 775.084(4)(d) reads, in its entirety, that "[a] sentence imposed under this section shall not be increased after such imposition." In the twenty years since the original enactment of Section 775.084 (Ch....

...1988). We agree with appellant that the intended meaning of subsection (4)(d) is not entirely clear from a literal reading of the words used. However, the meaning ascribed to the subsection by appellant is irreconcilable with the principal purpose of Section 775.084, of which it is a part....

...nd the strict letter of the statute; the spirit of the law prevails over the letter." Garner v. Ward, 251 So.2d 252, *978 256 (Fla. 1971). To interpret subsection (4)(d) as appellant suggests would lead to a result clearly at odds with the spirit of Section 775.084, read as a whole....

...nder after the initial conviction has been set aside, the trial court shall not increase the sentence originally imposed. The state's interpretation of subsection (4)(d), unlike appellant's, is reconcilable with the overall legislative intent behind Section 775.084....

...Accordingly, we agree with, and adopt as our own, the interpretation urged by the state. When appellant was originally found to be an habitual felony offender and sentenced for possession of cocaine, a third-degree felony [§ 893.13(1)(f), Fla. Stat. (1989)], he could have been sentenced to up to ten years in prison. § 775.084(4)(a)3., Fla. Stat. (1989). Accordingly, because the sentencing guidelines do not apply to habitual offender sentences [§ 775.084(4)(e), Fla....

...served. Poore, supra . As the 6-year sentence imposed was well within the 10-year maximum, we affirm. AFFIRMED. ERVIN and KAHN, JJ., concur. NOTES [*] We recognize that some courts, noting that the findings required by the habitual offender statute (§ 775.084, Fla....

...His claim is that his habitual offender sentence was not authorized by statute because his last previous felony conviction and commitment ended more than five years prior to his commission of the current offense. Because the appellant has stated a colorable claim, his motion should not have been summarily denied. See section 775.084(1)(a)2 b, Florida *465 Statutes (1997); Johnson v....

...4th DCA 1990), review denied, 576 So.2d 288 (Fla. 1991); Mitchell v. State, 575 So.2d 798 (Fla. 4th DCA 1991); Crawley v. State, 578 So.2d 16 (Fla. 4th DCA 1991). *22 The trial court, however, failed to make any of the required findings under the habitual offender statute. See § 775.084(1)(a), Fla....

...Stat. (1991). Therefore, we reverse the sentence imposed and remand this cause to the trial court for resentencing. On remand, the trial court may again sentence appellant as an habitual felony offender upon making the predicate findings as required by section 775.084(1)(a), Florida Statutes (1991)....

...The State claims that Hamilton waived the procedural requirements of the Act by agreeing to the prison releasee reoffender sentence. Although this issue has not been presented in the context of the Act, it has been addressed in cases where a defendant has been sentenced as a habitual felony offender pursuant to section 775.084, Florida Statutes. In that context, this court has held that a defendant may waive the procedural requirements of section 775.084 if the defendant stipulates that he qualifies as a habitual felony offender and agrees to be sentenced as such....

...State, 630 So.2d 521 (Fla. 1993), Mr. Hamilton contends the court *965 below erred in ruling lawful the sentencing court's imposition of sentences for misdemeanor offenses consecutive both to one another and to two, concurrent [1] habitual felony offender sentences. See § 775.084, Fla....

...unts while leaving the sentence lengths on both counts the same, we held that, Davis notwithstanding, the amended sentences, in the aggregate, ran afoul of Hale because they "exceed[ed] the statutory maximum if both sentences had been enhanced under section 775.084 [the habitual offender statute] and run concurrently, or if neither had been enhanced and run consecutively." Kiedrowski v....

...habitual offender sentences to run concurrently. Unlike the defendant in Kiedrowski, the appellant here received sentences (on the misdemeanor counts) which never were and could not in fact have been enhanced under the habitual offender statute. See § 775.084, Fla....

...elony offender enhancement, see § 787.01(2), Fla. Stat. (2004) ("A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084."), his total sentence does not exceed the maximum sentence he could have received had the trial court imposed consecutive sentences on all counts, not enhanced under the habitual felony offender statute.

...is be resentenced. The habitual felony offender sentencing statute specifically exempts from its application criminal defendants who are convicted of "a violation of s.893.13 relating to the purchase or the possession of a controlled substance." See § 775.084(1)(a)3, Fla....

...In making its ruling below, the trial court had before it the Grene decision from this court, yet declined to follow its mandatory authority. Instead, the trial court attempted to distinguish Ellis' case based on its perception of the legislative intent behind section 775.084, Florida Statutes and the amount of controlled substance Ellis possessed at the time of his arrest (which the court believed showed it was not possessed for Ellis' personal use)....

...Further, despite the numerous *1187 opinions from this and other District Courts of Appeal decided in 1995 and 1996 holding that convictions for possession with intent to sell under section 893.13 cannot receive habitual felony offender sentencing treatment, [1] the Florida Legislature met in 1997 and specifically reenacted section 775.084 without making any changes to subsection (1)(a)3....

...Finally, although we understand the trial court's good intentions, when confronted with binding precedent, trial judges are obliged to follow that precedent even if they might wish to decide the case differently. Wood, 677 So.2d at 19. Unless and until section 775.084(1)(a)3, Florida Statutes is changed, a criminal defendant convicted only of a violation of either the purchase or possession portions of section 893.13, Florida Statutes may not receive an enhanced sentence under the habitual felony offender statute....

...The trial court noted defendant's prior convictions, but struck the habitual offender enhancement on the grounds that the defendant's priors could not be considered predicate crimes for habitual offender status because probation was not a sentence. The State appeals. Section 775.084, Florida Statutes, sets forth the criteria to support a finding that a defendant is a habitual felony offender. § 775.084, Fla....

...and that the felony was committed "[w]hile the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense [.]" § 775.084(1)(a)2, Fla. Stat. (2003)(emphasis added). Additionally, Section 775.084(2), provides: "For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction." § 775.084(2), Fla....

...enhancement, has been the subject of controversy among some Florida districts; specifically, the Fourth and Second Districts. The Second District holds firm to its finding in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003) that a "sentence" under section 775.084 includes the sanction of probation and therefore, the State may rely on a case where the defendant was placed on probation to support a habitual offender status....

...The Fourth District reasoned that where defendant was convicted and, as a result of the conviction, the court found the defendant violated his probation, the sentence for the violation case and the case which forms the basis for the violation are entered on the same day and violate the sequential conviction requirement of section 775.084, Florida Statutes, which provides: "In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony." § 775.084(5), Fla. Stat. (2003); Richardson, 884 So.2d 950, 951. On rehearing, the Fourth District considered the interrelations of subsections two and five of section 775.084, Florida Statutes, and found that the subsections, when read together, are ambiguous but not inconsistent....

...State, 742 So.2d 503 (Fla. 3d DCA 1999), previously considered whether a prior grand theft conviction where the defendant was placed on probation and completed the probationary period at the time he committed the subsequent offense, could be considered for section 775.084 sentencing. At the time of Render, section 775.084(2) provided: "For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during the probationary period." § 775.084(2), Fla....

...In the instant case, the trial court struck the State's notice of intent to seek habitual offender enhancement where the defendant was placed on probation and adjudication was withheld, believing that it could not consider a predicate crime for which the defendant received probation under section 775.084. Clearly, section 775.084(2), governs the instant matter and the predicate crime may be considered for habitualization. We disagree with the Fourth District's reading that sections 775.084(2) and 775.084(5) are inconsistent. Section two clearly intends to define, or extend, the term "prior conviction." § 775.084(2), Fla....

...fter the commission of the crime in the instant case, and did not meet the definition of a predicate offense. Moreover, Rogers argued that the other judgment put forth by the State was for a crime that was not one of the enumerated felonies found in section 775.084(1)(b), Florida Statutes, the statute controlling habitual violent felony offender classification....

...The State requested a hearing on the matter. The trial court scheduled a hearing on Rogers's motion, but did not rule on the motion within the sixty-day time limit. Therefore, the motion was deemed denied by operation of law. See Fla. R.Crim. P. 3.800(b)(1)(B). Section 775.084(1)(b), Florida Statutes, is the controlling statute for habitual violent felony offender classification....

...To be classified as a habitual violent felony offender, a defendant must have a prior conviction and sentence for one of the enumerated crimes listed in the statute, and must have committed the current crime either while serving another prison sentence, or within five years of the date of the prior conviction. § 775.084(1)(b), Fla....

...e in the instant case. While the crime introduced into evidence took place in 1991, the sentence was handed down in 2000, following the commission of the crime in the current case. Therefore, this "prior" conviction does not meet the requirements of section 775.084(1)(b), Florida Statutes. Further, the other conviction introduced at trial was for a crime not enumerated in section 775.084(1)(b), Florida Statutes....

...We also find no error in the trial court's order denying relief with regard to Debuisson's claim that he was improperly sentenced as a habitual felony offender without the necessary two prior predicate felonies. The record reveals that Debuisson was sentenced as a habitual violent felony offender under section 775.084(1)(b), Florida Statutes (1998), which requires only a single prior felony conviction for enhanced sentencing....

...The two necessary predicate offenses for the habitualization were 1991 convictions for burglary offenses. However, those two predicate convictions were entered on the same day by the same judge and did not meet the "sequential convictions" requirement of section 775.084, Florida Statutes (1993)....

...Notably absent from defendant's motion is any affirmative allegation that his release from prison occurred more than five years prior to his 1997 offense. Under the applicable version of the habitual offender statute, the 1997 offense had to be committed "within 5 years of the defendant's release from a prison sentence...." § 775.084(1)(b)2.b., Fla....

...with an assault, four counts of aggravated assault with a deadly weapon, one count of grand theft vehicle, and one count of aggravated assault with a firearm. Based upon the State's notice of intent to seek an enhanced sentence [1] filed pursuant to section 775.084, Florida Statutes (1993), and after reviewing the presentence evaluation prepared by the Department of Corrections, the trial court sentenced Williams as a habitual violent felony offender....

...obation. On September 23, 1994, while still on probation, Williams committed the offenses which are the subject of the instant appeal. Williams was sentenced as a habitual violent felony offender for the instant offenses on September 23, 1994, under section 775.084, Florida Statutes (1993). Sexual battery is a qualifying offense pursuant to the statute. § 775.084(1)(b)b, Fla....

...(1993). An incarceration as a youthful offender for the commission of this sexual battery constitutes a predicate offense for sentencing as a habitual violent felony offender. See Whitfield v. Singletary, 730 So.2d 314, 315 (Fla. 3d DCA 1999). Under section 775.084(1)(b), the trial court may sentence a defendant as a habitual violent felony offender only if it finds that the felony or felonies for which the defendant is to be sentenced was/were committed within five years of the defendant's release from a prison sentence or other commitment for an enumerated felony. Section 775.084(1)(b)2 provides that an enhanced penalty as a habitual violent felony offender may be imposed if the defendant was previously convicted of an enumerated felony and: The felony for which the defendant is to be sentenced was committed w...

...ry, was for an additional six months of incarceration. [2] We recognize that under the sentencing scheme in effect when Williams committed the offenses in the instant case, community control and probation were not "other commitments" contemplated by section 775.084, and therefore, could not be considered when computing the time between Williams' release from commitment for the sexual battery conviction and the commission of the instant felonies....

...State, 620 So.2d 1084, 1086 (Fla. 1st DCA 1993) (concluding that while community control is more restrictive than probation, that community control is not the functional equivalent of imprisonment and therefore did not qualify as "other commitment" under section 775.084); Allen v. State, 487 So.2d 410, 412 (Fla. 4th DCA 1986) (holding that the phrase "other commitment" in section 775.084 did not include probation)....

...t District concluded in Smith v. Moore, 782 So.2d 955, 957 (Fla. 1st DCA 2001), that the imposition of the additional six-month sentence after a finding of guilt as to the community control violation does constitute an "other commitment" pursuant to section 775.084, Florida Statutes (1993)....

...urt sentenced him as an habitual felony offender. At the sentencing hearing the court determined that due to prior felony convictions within five years of his present adjudication, the defendant would be exposed to the enhanced punishment provision, section 775.084, Florida Statutes (1979)....

...inal activity of the defendant. Jones v. State, 384 So.2d 956 (Fla.5th DCA June 18, 1980); Bell v. State, 382 So.2d 107 (Fla.5th DCA 1980). However, the trial judge did not state in the record why he was sentencing the defendant to the greater term. Section 775.084, Florida Statutes (1979) subsection (3) provides: *605 In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4)......

...enalty statute to ten years with probation after serving four. In Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976), the court stated: It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.084 F.S. 1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084....

...State, 369 So.2d 1031 (Fla.4th DCA 1979). The trial judge can consider a defendant's prior record alone so long as the conviction record is reflected in open court and is sufficient to satisfy the judge by a preponderance of evidence that the defendant should be sentenced under section 775.084, Florida Statutes (1979), for the protection of the public. Because the reasons were not given by the trial judge in this case why section 775.084, Florida Statutes (1979), was being invoked, we reverse the sentence and remand for resentencing....

...ed "[w]ithin 5 years after the conviction of the last prior enumerated felony, or within 5 years after the defendant's release from a prison sentence... that is imposed as a result of a prior conviction for an enumerated felony, whichever is later." § 775.084(1)(d)3.b., Fla. Stat. (2008) (emphasis added). An "enumerated felony" is any one of those crimes identified in section 775.084(1)(d)1., including "[a]ny forcible felony, as described in s. 776.08." § 775.084(1)(d)1.a., Fla....

...Section 776.08 defines a "forcible felony" as, among other things, "home-invasion robbery; robbery; ... and any other felony which involves the use or threat of physical force or violence against any individual." § 776.08, Fla. Stat. (2008). Here, the circuit court found the "enumerated felony" referenced in section 775.084(1)(d)3.b. to be the defendant's prior conviction for "robbery by sudden snatching." However, "robbery by sudden snatching" does not qualify as an "enumerated felony" under section 775.084(1)(d)3.b. for four reasons. First, *991 "robbery by sudden snatching" is not any of those crimes identified in section 775.084(1)(d)1.b.-g....

...[1] Defendant points out that in the plea colloquy the prosecutor stated that this count was a life felony. The prosecutor was in error. The sole charge in this case was under section 810.02, which is a first degree felony punishable by life imprisonment. Habitualization is permissible for a first degree felony. See § 775.084(4)(a), Fla....

...Defendant argues that count two was also a life felony on which habitualization would be improper. Again, the defendant is incorrect. Count two was robbery with a firearm. That crime is a first degree felony punishable by life imprisonment. Id. § 812.13(2)(a). A first degree felony is subject to habitualization. Id. § 775.084(4)(a)....

...These were not juvenile adjudications. Consequently both cases were properly treated as predicate offenses for habitualization purposes. Thus, it is clear that the defendant qualifies as a habitual offender. [2] *145 The defendant argues that he should receive the benefit of subsection 775.084(2), which provides that "[t]he placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period." This provision does not apply here....

...tion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although we conclude that Royal's motion was timely filed, we affirm the order of dismissal because the State's "shotgun" notice of intent to seek enhanced penalties pursuant to section 775.084, Florida Statutes (1995), provided Royal with adequate notice of the classification and penalty he would be subject to upon conviction....

...Nevertheless, the written sentence as to Count 2 incorrectly indicates habitual offender enhancement. Consistent with the oral pronouncement (and the plea agreement), Moses received a five-year statutory maximum sentence for Count 2, a third degree felony. Section 775.084(l)(a)3., Florida Statutes, does not allow enhanced habitual offender sentences for possession of a controlled substance; thus, it was clearly not the intention of the trial court to sentence Moses as a habitual offender for Count 2....

...argues the trial court erred in departing from the presumptive guidelines sentence when sentencing him on his original offense and in imposing a habitual violent felony offender sentence on the new offense without making all of the findings of fact required by section 775.084(1)(b), Florida Statutes (1991)....

...The trial judge then held a sentencing hearing for Rice's new robbery conviction. At this hearing, the judge found that Rice was a habitual violent felony offender and sentenced him to 15 years in prison with a 10 year minimum mandatory provision based on the habitual violent felony offender statute, section 775.084(4)(b)2, Florida Statutes (1991)....

...der statute on the new substantive offense. Because Rice was adjudicated a habitual violent felony offender on the subsequent robbery offense, that offense was removed from guidelines consideration and a scoresheet was not, therefore, necessary. See § 775.084(4)(e), Fla....

greater than the statutory maximum. We agree. Section 775.084(4)(a) does not mandate the imposition of a

...s but the HFO portion of the sentence must be longer than the PRR portion of the sentence. See § 775.082(9)(c) ("Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 [the HFO statute] or any other provision of law."); Grant v....

...HFO statutes as long as the HFO portion of the sentence is longer). The State first suggests that the ten-year sentence in this case is permissible because the HFO statute doubled the maximum sentence of five years, a point we do not dispute. See § 775.084(4)(a)(3), Fla....

...The appellant, appearing pro se, challenges the judgment and departure sentence imposed upon him following his conviction for burglary of a conveyance. He has raised four issues, we have considered each and find one meritorious. The trial court sentenced the appellant as a habitual offender pursuant to section 775.084, Florida Statutes (1987)....

...[*] Whitehead v. State, 498 So.2d 863 (Fla. 1986). The appellant's sentence is reversed and we remand for resentencing within the guidelines range. In all other aspects this matter is affirmed. CAMPBELL, C.J., and SCHOONOVER, J., concur. NOTES [*] Section 775.084 was amended effective October 1, 1988 to provide that the habitual offender statute exists independently from the guidelines and is available to trial courts for sentencing pursuant to its requirements. § 775.084, Fla....

...It is not clear from the record whether Wallen was sentenced as an habitual felony offender or a violent felony offender for this offense, but the maximum sentence for the habitual felony offender is ten years with a five-year minimum mandatory sentence if he was found to be a violent felony offender. See § 775.084(4)(b)3, Fla....

...We reject all issues raised by Ford in connection with his conviction on multiple counts involving lewd or lascivious acts and indecent exposure. Thus we turn our attention to his contention that he could not be deemed a habitual felony offender (HFO) because the predicate convictions were all imposed on the same day. Section 775.084(5) provides: "In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any ot...

...ce it was necessary for the state to show that the multiple convictions used to sentence defendant as a HFO were truly sequential convictions. In Bover v. State, 797 So.2d 1246 (Fla.2001), the court held that the sequential conviction requirement in section 775.084(5) cannot be met by multiple convictions imposed on the same day unless they result from separate sentencing proceedings....

...iminal Procedure 3.800(a) in which he alleges that (1) the written judgment does not comport with the oral pronouncement of his sentence; (2) the controlling oral pronouncement of his sentence does not comport with the mandatory sentencing scheme in section 775.084(4)(b); and (3) the appellant may not be resentenced under the habitual felony offender statute because it would be a violation of double jeopardy....

...bbery. We affirm the convictions, but reverse and remand for resentencing in light of the recent decision of the Supreme Court of Florida in State v. Thompson, 750 So.2d 643 (Fla.1999)(the Gort Career Criminal Act, ch. 95-182, Laws of Fla. (amending section 775.084, Florida Statutes) is unconstitutional as a violation of the single-subject rule of article III, section 6 of the Florida Constitution)....

...Considering that the jury heard testimony regarding Brown's fourteen prior convictions, we fail to see how this brief reference to incarceration was prejudicial. Finally, Brown was sentenced as a violent career criminal to two life terms under the Gort Act amendments to section 775.084, Florida Statutes....

...Benjamin pleaded guilty and was adjudicated an habitual violent felony offender (HVFO). However, as Benjamin asserts and as the State concedes, none of the crimes for which Benjamin presently serves his sentence are of the enumerated felonies which qualify him for HVFO designation pursuant to Florida Statute 775.084 (1997)....

...s not an enhanced sentence, it could be required to be served consecutive to an unenhanced Criminal Punishment Code sentence arising out of the same criminal episode. A habitual violent felony offender sentence, however, is an enhanced sentence. See § 775.084, Fla....

...1978). *1138 However, in view of the Florida Supreme Court's recent decision in Ashley v. State, 614 So.2d 486 (Fla. 1993), we will briefly address appellant's challenge to the imposition of an enhanced penalty pursuant to the habitual offender statute, section 775.084, Florida Statutes (1987)....

...re of the possibility and reasonable consequences of habitualization. Id. at 490. The record reflects on March 1, 1991, the state served the public defender with written notice of its intention to seek an enhanced penalty pursuant to Florida Statute 775.084....

...his term in prison, the issue is now moot. See Williams v. State, 549 So.2d 734 (Fla. 2d DCA 1989). Finally, appellant has failed to demonstrate reversible error based on the trial court's failure to make express findings pursuant to Florida Statute section 775.084(3) and (4)....

...third-degree felonies; and one count of criminal mischief, a second-degree misdemeanor. See §§ 810.02(3)(a), 784.03(2), 806.13(1)(b)(1), Fla. Stat. (2006). The trial court sentenced him to fifteen years in prison as a habitual felony offender, see § 775.084(4)(a), Fla....

...After examining the pertinent statutes, we conclude that the sentence required by section 790.235 is mandatory. As with the habitual felony offender and habitual violent felony offender statutes, the trial judge does have the authority to determine that sentencing as a violent career criminal under section 775.084(1)(c) is not necessary for the protection of the public. See § 775.084(3)(b). However, unlike section 775.084(1)(c), section 790.235 is a substantive offense statute, not a sentencing statute....

...abitual offender statute in effect at the time Key committed the above-noted crimes. See Lamont v. State, 610 So. 2d 435, 438 (Fla. 1992) (holding that one convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084); Flanders v. State, 217 So. 3d 160, 161 (Fla. 3d DCA 2017) (explaining that section 775.084 did not provide for enhanced sentencing on life felonies committed prior to October 1, 1995). Key’s sentences as a habitual offender for these offenses are therefore illegal....

...ice). We therefore grant Benjamin's motion for rehearing, vacate the VCC sentence and remand for resentencing. At resentencing, the State may attempt to establish that Benjamin qualifies for an enhanced sentence under any other applicable portion of section 775.084, Florida Statutes (2001). Reversed, VCC sentence vacated, and remanded for resentencing. NOTES [1] Section 775.084, Florida Statutes (2001); the defendant states that his offense date was February 15, 2001....

...Clifton was sentenced in February 1998 to two concurrent thirty-year terms of imprisonment with minimum mandatory terms of thirty years. These sentences arose from two offenses committed in August 1997. He qualified for sentencing as a violent career criminal in these cases under sections 775.084(1)(c), (4)(c)(2), Florida Statutes (1997)....

...The trial court checked the box for sentencing as a habitual violent felony offender and entered a minimum term of thirty years in the space provided for the minimum term under such sentencing. The form recites that this sentence is imposed in accordance with the provisions of section 775.084(4)(b)....

...We, therefore, affirm Bynes’ conviction and sentence as a violent career criminal. Any defendant who has previously been convicted as an adult three or more times for a forcible felony as de *291 scribed in section 776.08 1 must be sentenced as a violent career criminal. § 775.084(l)(d), Fla....

...means which have a reasonable and substantial relation to its purpose which are not unreasonable, arbitrary, or capricious. State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986). The legislative purpose of the violent career criminal statute is set out in section 775.0841: The Legislature finds a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals.... The Legislature intends ... to incarcerate them for extended terms; and, in the case of violent career criminals, such extended terms must include substantial mandatory minimum terms of imprisonment. The legislative intent expressed in section 775.0841 applies to all career criminals and violent career criminals....

...habitual felony offenders (two prior felonies), habitual violent felony offenders (one prior enumerated felony), three-time violent felony offenders (two prior enumerated felonies), and violent career criminals (three prior enumerated felonies). See § 775.084(a)-(d), Fla....

...(2001) (emphasis added). *292 Bynes could not have been sentenced as a prison releasee reoffender, a three-time violent felony offender or a habitual violent felony offender because those statutes do not list “burglary” as one of the qualifying offenses. See § 775.084(l)(b)l.m....

...ertion that his sentences were imposed as punishment for his exercise of his constitutional rights, the sentences are affirmed. At the sentencing hearing, Appellant stipulated to his habitual felony offender (“HFO”) status, pursuant to section 775.084(1)(a), Florida Statutes. The statutory maximum sentence was thus thirty years. § 775.084(4)(a), Fla....

...on of armed robbery, with a minimum sentence of fifteen years. The habitual violent felony offender sentence is illegal, Johnson claims, because he did not have prior convictions that qualified as predicate offenses for purposes of enhancement under section 775.084, Florida Statutes (1995)....

...supports his allegation. If so, the court shall resentence Johnson accordingly; if not, the court shall attach to its order portions of the record that refute Johnson's claim. Reversed and remanded. PARKER, A.C.J., and WHATLEY, J., Concur. NOTES [1] Section 775.084(2), Florida Statutes (2000), now treats as prior convictions offenses for which the offender was placed on community control and adjudication was withheld.

...*544 Crumitie argues first that first-degree felonies punishable by life are not subject to the habitual offender statute. He also seeks resentencing, arguing that the trial court believed that, once it determined that he qualified as an habitual violent felony offender, the imposition of a life sentence under section 775.084(4)(b)(1), Florida Statutes, was mandatory....

...However, the second issue raised by Crumitie was also addressed in Burdick II, when the court answered a question certified in Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA 1991) ( Burdick I ), to wit: "Is a life sentence permissive or mandatory under the 1988 amendment to section 775.084(4)(a)1, Florida Statutes?" The court responded that "sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive not mandatory." Burdick II at 271 (emphasis supplied). The court ruled that, because "the State argued that a life sentence is mandatory under section 775.084(4)(a)(1), and because the trial court in this case did not indicate whether it believed it could in fact decline to impose a life sentence, we remand for the trial court to reconsider the sentence as within its discretion." Burdick II at 271....

...BARFIELD and MINER, JJ., concur. NOTES [1] Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990) held that, once a trial court determines to sentence an offender as an habitual violent felon, then the court is required to impose sentence in conformity with section 775.084(4)(b). Donald at 795. The Florida Supreme Court held to the contrary in Burdick v. State, 594 So.2d 267 (Fla. 1992), finding that sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive, not mandatory....

...The habitual felony offender statute states, "[w]ritten notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant." § 775.084(3)(a)2, Fla....

...chool and possession of cocaine. Vance was sentenced as a habitual felony offender on both offenses. Vance argues, and we agree, that the trial court erred in imposing a habitual felony offender sentence for the offense of possession of cocaine. See § 775.084(1)(a)(3), Fla....

...f. See Bover v. State, 797 So.2d 1246 (Fla. 2001); Jackson v. State, 803 So.2d 842, 844-45 (Fla. 1st DCA 2001). The records identified by appellant demonstrate that he has sufficient prior convictions to qualify for sentencing under the VCC statute. § 775.084(1)(d)1, Fla....

...If appellant was not released from incarceration or supervision as a result of *656 an enumerated felony within the requisite time frame, he must identify how court records demonstrate on their face an entitlement to relief. Bover, 797 So.2d at 1248-49. See § 775.084(1)(d)3b, Fla....

...The State appeals an order imposing sentence on defendant-appellee James Harris as a violent career criminal. The State contends that the trial court erred in imposing a twenty-five-year mandatory sentence on defendant for a first-degree felony, when the applicable statute calls for a mandatory life term. See § 775.084(4)(c)1., Fla....

...The State contends that on remand the trial court must increase the sentence to the mandatory life term. We disagree. The statute calls for the trial court to impose sentence as a violent career criminal unless "the court finds ... that it is not necessary for the protection of the public ...." § 775.084(4)(d), Fla....