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. 06-43329, Alan S. Fine, Judge.
Vilsaint, in proper person.
Moody, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
HENDON, MILLER, and LOBREE, JJ.
Vilsaint ("Defendant") appeals from the denial of
his motion to correct an illegal sentence pursuant to Florida
Rule of Criminal Procedure 3.800(a). We affirm.
1993, the Defendant plead guilty in Broward County case
number 93-6649CF10B to one count of armed burglary and two
counts of third degree grand theft. Adjudication was withheld
and the Defendant was sentenced to two years of community
control/probation, to terminate in June 1997. When the
Defendant successfully completed his probation, the
adjudication was withheld and the case was closed. In 2003,
the Defendant was charged with new felony offenses in
Miami-Dade County case number F03-14767. He plead guilty and
was sentenced to five years in prison. In 2006, the Defendant
was convicted on new felony charges of first degree murder,
possession of a firearm by a convicted felon, armed burglary
with assault or battery, among other serious offenses. His
probation in case number F03-14767 was revoked, and he was
sentenced in 2011 as a habitual felony offender based on his
two prior offenses, one of which was the 1993 withhold of
adjudication. His convictions and sentences were affirmed on
direct appeal. Vilsaint v. State, 117 So.3d 424
(Fla. 3d DCA 2012) (table).
2018, the Defendant filed a rule 3.800 petition, which is the
subject of this appeal, in which he alleged his habitual
felony offender status is illegal because the 1993 withhold
of adjudication, one of the two predicate offenses required
for habitualization, could not be counted as a prior
conviction for purposes of imposing a habitual offender
sentence. The trial court denied relief.
Defendant correctly observes that in 1993, a withhold of
adjudication was not considered a "conviction" for
purposes of imposing a habitual felony offender sentence
unless the subsequent offense was committed during the
probationary period. The version of the habitual offender
statute at that time, section 775.084(2), Florida Statutes
(1993), provided: "[F]or 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." The record
shows that by 1997, the Defendant successfully completed his
probation, no adjudication of guilt was entered, and the case
Defendant is incorrect, however, in his conclusion that the
1993 case could not be considered a conviction in 2011. In
July 1999, well after the Defendant's 1993 case was
closed, the habitual offender statute was amended to read
that "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. Stat.
(1999-present). When the Defendant reoffended in 2006, the
statute - as it read since 1999 - specifically provided that
withholds shall be considered convictions for purposes of
imposing habitual offender sentencing. It is the habitual
offender statute in effect on the date of the commission of
the offense that controls, and the trial court correctly
counted the Defendant's 1993 withhold of adjudication as
one of the two predicate sequential offenses required for
imposing a habitual offender enhancement to the
Defendant's current sentence. See Perkins v.
State, 583 So.2d 1103, 1105 (Fla. 1st DCA 1991) (holding
that, as the appellant's enhanced punishment is an
incident of his current offense, application of the statute
in force at the time of his current offense does not violate
the constitutional protection against ex post facto laws),
approved and ...