Opinion
No. 89-3340.
April 3, 1991. Order on Motion for Certification April 23, 1991.
An Appeal from the Circuit Court for Alachua County; Robert P. Cates, Judge.
Barbara M. Linthicum, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant's convictions for aggravated assault and shooting into an occupied vehicle are affirmed. See § 775.021(4), Fla. Stat. (Supp. 1988); Taylor v. State, 543 So.2d 366 (Fla. 1st DCA 1989); and McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980). However, the trial court erred in sentencing appellant as an habitual felony offender because his predicate felony convictions arose from the same incident and were entered on the same day. Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991).
REVERSED and REMANDED for resentencing.
SMITH and BARFIELD, JJ., concur.
WOLF, J., specially concurs with opinion in which BARFIELD, J., concurs.
ORDER ON MOTION FOR CERTIFICATION
On motion of the appellee, State of Florida, we certify to the Supreme Court of Florida, the same question certified in Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991), as a matter of great public importance:
WHETHER SECTION 775.084(1)(a)1, FLORIDA STATUTES (1989), WHICH DEFINES HABITUAL FELONY OFFENDERS AS THOSE WHO HAVE "PREVIOUSLY BEEN CONVICTED OF ANY COMBINATION OF TWO OR MORE FELONIES IN THIS STATE OR OTHER QUALIFIED OFFENSES," REQUIRES THAT EACH OF THE FELONIES BE COMMITTED AFTER CONVICTION FOR THE IMMEDIATELY PREVIOUS OFFENSE?
SMITH, BARFIELD and WOLF, JJ., concur.
For the reasons expressed in my dissent in Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991), I feel that the trial court did not err in sentencing the defendant as a habitual felony offender. I do, however, feel we are bound by the decision in Barnes and would, therefore, concur in the opinion of this court.