final until disposition of timely filed motion for rehearing.
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.
Jo Bondi, Attorney General, and Gabrielle Raemy
Charest-Turken, Assistant Attorney General, for appellee.
FERNANDEZ, LUCK and LINDSEY, JJ.
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
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.
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." 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
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
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 ...