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Garcia v. State

Florida Court of Appeals, Third District

December 27, 2017

Carlos Jose Garcia, Appellant,
v.
The State of Florida Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Lower Tribunal No. 98-25761 Oscar Rodriguez-Fonts, Judge.

          Jonathan Arias, for appellant.

          Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.

          Before FERNANDEZ, LUCK and LINDSEY, JJ.

          LUCK, JUDGE.

         Carlos Jose Garcia appeals the trial court's order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct his illegal habitual violent felony offender sentence. We affirm.

         In 1995, Garcia pleaded guilty to committing aggravated assault with a firearm, and was sentenced to probation. While on probation, in 1996, Garcia committed armed robbery. A jury found Garcia guilty of the armed robbery charge, and he was sentenced, in 1999, to forty years in state prison, with a fifteen year minimum mandatory sentence, as an habitual violent felony offender.

         Garcia contends that his habitual violent felony offender designation was illegal because his 1995 aggravated assault conviction could not be used as a qualifying offense to enhance his sentence. Garcia points to section 775.084(1)(b)(2)(a), Fla. Stat. (Supp. 1998), which provided that the trial court may impose an extended term of imprisonment if the court found the defendant committed his felony while serving "a prison sentence or other commitment."[1] His 1995 probation sentence, Garcia argues, did not qualify as "a prison sentence or other commitment, " and therefore, could not serve as a basis to enhance his 1999 armed robbery sentence. See Hightower v. State, 630 So.2d 1220, 1221 (Fla. 2d DCA 1994) ("[I]f community control cannot be included in the definition of 'other commitment, ' then probation, which is a less restrictive form of control, also should not be included.").

         But as the trial court explained in its well-reasoned order, Garcia ignored the next sentence in the habitual violent felony offender statute. Section 775.084(1)(b)(2)(b) provided that the defendant's sentence also may be enhanced if his felony was committed "[w]ithin 5 years of the date of the conviction" of an earlier qualifying prior felony. § 775.084(1)(b)(2)(b), Fla. Stat. (Supp. 1998). The complete provision read:

"Habitual violent felony offender" means a defendant for whom the court may impose an extended term of imprisonment . . . if it finds that . . . .
The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony; or
b. Within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant's release from a prison sentence or other commitment imposed as a result of a prior ...

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