2D05-2446 / McDonald v. State

State: Florida

Court: Florida Southern District Court

Docket No: 2D05-2446

Case Date: 01/26/2007

Plaintiff: 2D05-2446 / McDonald

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

LEROY C. McDONALD, Appellant, v. STATE OF FLORIDA, Appellee.

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Case No. 2D05-2446

Opinion filed January 26, 2007. Appeal from the Circuit Court for Lee County; William L. Blackwell, Senior Judge. James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Leroy C. McDonald appeals his conviction and sentence for robbery. McDonald contends that the trial court erred: (1) in denying his motion to suppress an

in-court identification of McDonald by a witness and (2) in sentencing McDonald as a prison releasee reoffender and as a violent habitual offender. We affirm, without comment, on the first ground. However, on the second ground, we reverse and remand for resentencing. McDonald was sentenced to fifteen years' prison. McDonald's written judgment and sentence indicates that he was sentenced as a "Violent Habitual Offender" and as a "Prison Release Re-Offender." McDonald argues that, at the sentencing hearing, the judge initially intended to sentence McDonald to a life sentence with both enhancements but changed his mind after he was reminded that McDonald was convicted of only a second-degree felony. The judge said: "Strike what I said earlier. The sentence is 15 years in Florida State Prison." McDonald argues that the judge struck the enhancements along with the life sentence. Consequently, McDonald asserts that the trial judge did not intend to sentence him as a violent habitual offender or as a prison releasee reoffender when finally sentencing him to fifteen years' prison. We reject this argument. Although the judge could have made his oral pronouncement more clear, it appears that the judge intended to strike only the life sentence and replace it with a fifteen-year sentence, retaining both enhancements. However, this dual enhancement was improper because McDonald's fifteen-year sentence is not greater than the mandatory prison releasee reoffender sentence. See

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