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Rivera v. State

Florida Court of Appeal, Fourth District

May 20, 2009

Angel RIVERA, Appellant,
v.
STATE of Florida, Appellee.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 00-04939 CF10A.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

We reconsider on remand our opinion in Rivera v. State, 939 So.2d 1197 (Fla. 4th DCA 2006), which was quashed by the Florida Supreme Court following its decision in Rivera v. State, 7 So.3d 523, 2009 WL 702826 (Fla. Mar. 27, 2009). As ordered by the Supreme Court, we apply its decision in Yisrael v. State, 993 So.2d 952 (Fla.2008), to the facts of this case.

In Yisrael, the Supreme Court disapproved of this Court's holding in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), which was the case relied upon by this Court in holding that the Department of Correction's letter, alone, was sufficient evidence of Rivera's last release date to

Page 659

sentence him as a habitual felony offender (HFO). See Rivera, 939 So.2d at 1197. Given the Supreme Court's reasoning in Yisrael, we now reverse Rivera's sentence as a HFO because a Department of Correction's letter, alone, is insufficient to support sentencing as a HFO. See Yisrael, 993 So.2d at 961. We, therefore, remand for resentencing consistent with the supreme court's decision in Yisrael. Upon remand, the State may present additional evidence to prove that the defendant qualifies for habitual felony offender sentencing. See State v. Collins, 985 So.2d 985, 990 (Fla.2008).

Reversed and Remanded.

HAZOURI, MAY and DAMOORGIAN, JJ., ...


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