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Antione HASTIE, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fourth District2019-04-03No. No. 4D18-3159
267 So. 3d 1037

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Opinion

majority opinion

Per Curiam.

Antione Hastie appeals the trial courts denial of his Rule 3.800(a) motion to correct illegal sentence. We reverse and remand for the trial court to remove the violent career criminal (VCC) designation from Hasties grand theft convictions.

On November 24, 2015, Hastie entered a negotiated plea of no contest in seven criminal cases. He was designated a habitual felony offender (HFO) and a VCC and was sentenced to fifteen years in prison with a ten-year mandatory minimum pursuant to his VCC designation. For the VCC predicate, the trial court used a previous burglary conviction where Hastie was a juvenile but was tried and convicted as an adult. On July 26, 2018, Hastie filed the subject Rule 3.800(a) motion to correct illegal sentence and argued that he could not be sentenced as a VCC for his grand theft convictions because they are not enumerated offences in the VCC statute and because his juvenile burglary conviction was wrongfully used to impose a VCC sentence. The lower court denied Hasties motion. The trial court correctly considered Hasties juvenile burglary offense for his VCC designation because he was tried and convicted as an adult. See generally Reed v. State , 880 So.2d 1269 (Fla. 3d DCA 2004) (explaining that a juveniles adult conviction can be considered for habitual offender sentencing). However, Hasties VCC sentences for his grand theft convictions are illegal. The VCC statute states, in relevant part:

(d) Violent career criminal means a defendant for whom the court must impose imprisonment ... if it finds that:

1. The defendant has previously been convicted as an adult three more times for an offense in this state or other qualified offense that is:

a. Any forcible felony ...

b. Aggravated stalking ...

c. Aggravated child abuse ...

d. Aggravated abuse of an elderly person or disabled adult ...

e. Lewd or lascivious battery ...

f. Escape ...

g. A felony violation of chapter 790 involving the use or possession of a firearm. ...

3. The primary felony offense for which the defendant is to be sentenced is a felony enumerated in subparagraph 1....

§ 775.084, Fla. Stat. (2015).

Grand theft is not enumerated as a primary or predicate offense; therefore, Hasties VCC sentences for those convictions should be vacated. See Bynes v. State , 127 So.3d 556, 557 (Fla. 4th DCA 2012) (As the State concedes, grand theft clearly does not qualify for VCC sentencing.). We reverse and remand for the ministerial entry of a corrected sentence at which Hastie need not be present. Reversed and remanded for resentencing.

Gross, Forst and Klingensmith, JJ., concur.