Florida District Courts of Appeal, 1981

King v. State

Florida District Courts of Appeal · Decided May 6, 1981 · Dauksch, Orfinger, Upchurch

398 So. 2d 469; 1981 Fla. App. LEXIS 19711 (Southern Reporter, Second Series)

Opinion of the Court

FRANK D. UPCHURCH, Jr., Judge.

Appellant challenges an enhanced penalty which was imposed after his conviction for assault on a law enforcement officer. The trial court found appellant to be an “habitual misdemeanant” based upon prior convictions for robbery and manslaughter.

Section 775.084(l)(b)1 permits an enhanced penalty only when the defendant has been convicted twice previously of the same crime. Hysmith v. State, 374 So.2d 1103 (Fla. 1st DCA 1979). Neither of the previous convictions were for the same crime.

Defendant’s sentence is vacated and this cause is remanded for resentencing.

DAUKSCH, C. J., and ORFINGER, J., concur.

. Section 775.084(l)(b) provides in part:

‘Habitual misdemeanant’ 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 at least twice previously been convicted of the same crime committed at different times after the defendant’s 18th birthday;

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