Opinion
No. VV-117.
September 4, 1981.
Appeal from the Circuit Court, Leon County, Richard Hood, J.
Armondo Garcia of Levine Garcia, Tallahassee, for appellants.
Cleveland Robert, in pro. per.
Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.
Roberts and Davis appeal their convictions for burglary. Roberts, who was sentenced as an habitual felon pursuant to Section 775.084 Florida Statutes (1979), also appeals his sentence. We affirm their convictions but reverse Roberts' sentence and remand for resentencing.
Before the trial court may sentence a party as an habitual felon, the court must find the extended sentence necessary for the protection of the public from further criminal activity. This finding must include "the underlying facts and circumstances which the trial judge relied on in making that finding." Adams v. State, 376 So.2d 47, 58 (Fla. 1st DCA 1979). Neither the trial court's order nor the transcript of the sentencing proceeding specify the facts on which the trial court relied. Accordingly, we reverse the sentence and remand for resentencing in accordance with this opinion.
ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH, J., concur.
JOANOS, J., concurs in part and dissents in part with opinion.
I concur in the majority's opinion in their affirming the convictions of appellants but dissent in their reversing of Roberts' sentence.
The situation involved in this matter is essentially the same as that involved in McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978). As in this case, the trial judge in McClain made the finding that an enhanced sentence as provided under § 775.084, Florida Statutes, was necessary for the protection of the public but did not articulate the facts supporting that conclusion. In reviewing the enhanced sentence, that Court said:
Turning to the instant case, we note that the judge made conclusionary findings by tracking the statutory language. It would have been helpful if he had outlined specific reasons for concluding that the sentencing of the appellant to an extended term was necessary for the protection of the public. However, the record in this case amply supports the ultimate conclusion, because the evidence concerning appellant's prior criminal record reflects that he has been engaged in a lifetime of crime. Since the findings required by the statute are fully supported in this record, the judge was at liberty to impose the extended sentence. 356 So.2d at 1257.
The same situation is set forth in the case before us, ". . . the record in this case amply supports the ultimate conclusion. . . ." The record reflects inter alia that Roberts was three times previously convicted of a felony and that he was on parole at the time he committed the crime in this case. That alone is sufficient to support the enhanced sentence permitted under the statute.
Adams v. State, 376 So.2d 47, 58 (Fla. 1st DCA 1979) is relied upon by the majority. That case is not applicable here for the reason that in Adams the record reflected that the trial judge in ordering the enhanced sentence may have relied upon hearsay evidence which was disputed. No such question is involved here.
The orders appealed from should be AFFIRMED in total.