03-2422 STATE V. DEL CASTILLO

State: Florida

Court: Florida Third District Court

Docket No: 03-2422 STATE V. DEL CASTILLO

Case Date: 12/22/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2004

THE STATE OF FLORIDA, Appellant, vs. ROBERT D. DEL CASTILLO, Appellee.

** ** ** ** ** CASE NO. 3D03-2422 LOWER TRIBUNAL NO. F02-36275

Opinion filed December 22, 2004. An Appeal from the Circuit Court for Miami-Dade County, Rosa Rodriguez, Judge. Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellant. Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellee. Before SCHWARTZ, C.J., and LEVY, J., and DAUKSCH, James C. Jr., Senior Judge.

LEVY, Judge.

The issue before the Court is whether the trial court properly struck the State's notice of intent to seek habitual offender enhancement where defendant received probation and adjudication was withheld for the predicate crime on which the State relies to support the habitual felony offender enhancement. Defendant was charged with two counts of third degree grand theft and two counts of uttering a forged instrument. The State filed an amended notice of intent to seek an enhanced penalty, alleging that defendant qualified as both a habitual felony

offender and as a habitual violent felony offender. Defendant moved to strike the habitual felony offender enhancement, arguing that his prior conviction should not be considered for purposes of the enhancement because he was placed on probation for the three prior charges. The trial court subsequently offered defendant a plea of

offer of 364 days in county jail with credit for time served, followed by a reinstatement to probation. Defendant accepted the court's offer. At defendant's motion plea to colloquy, the the trial court granted to seek

defendant's

strike

State's

notice

enhancement. The State objected to the plea, and pointed out that the defendant scored 97.8 months bottom of guidelines. The trial court then filed an Order justifying downward departure, explaining that defendant made full restitution to the victim two months before he was arrested. The trial court noted defendant's prior convictions, but struck the habitual offender enhancement on the grounds that the defendant's priors 2 could not be considered

predicate crimes for habitual offender status because probation was not a sentence. The State appeals. Section 775.084, Florida Statutes, sets forth the criteria to support a finding that a defendant is a habitual felony offender.

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