IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JAMES M. CLARK, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-2622
STATE OF FLORIDA,
Appellee.
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Opinion filed September 6, 2016.
An appeal from the Circuit Court for Calhoun County.
Allen L. Register, Judge.
Terry P. Roberts, Law Office of Terry P. Roberts, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant raises two issues related to his conviction and one issue regarding
his sentencing. We find only the claim related to appellant’s sentencing has merit.
The State concedes the trial court improperly designated appellant as an habitual
felony offender, ignoring the jury’s express finding that the State had failed to
prove appellant’s prior convictions.* See Borrell v. State 478 So. 2d 1185 (Fla. 4th
DCA 1985).
Based upon the State’s concession, we strike the habitual felony offender
designation and remand for appellant to be resentenced.
WOLF, B.L. THOMAS, and OSTERHAUS, JJ., CONCUR.
*
This finding was expressed in a special verdict form related to whether appellant
violated section 794.0115, Florida Statutes (2013).
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