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561 So. 2d 1330

Docket No. 89-1033.

Nunziata v. State

Gerard Michael NUNZIATA, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided May 31, 1990.

District Court of Appeal of Florida · decided 1990-05-31

Cited by 5 later decisions — most recently March 2003

4 state decisions

Key passage — most relied on by later courts

“While section 775.084(3) does, as defendant argues, state that such notice shall be served "on the defendant and his attorney," [only the attorney was served in Roberts ] that section gives the purpose of that requirement as being "so as to allow the preparation of a submission on behalf of the defendant" in response to the notice. In this case there was such a response prepared and made on behalf of the defendant, thus the purpose of the statute was fulfilled. We do not conclude that the legislature intended to permit a defendant to avoid the application of the statute on the technical grounds raised here. [Emphasis added.]”

quoted by 1 later decision, including 589 So. 2d 336 - Massey v. State

“Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant. (emphasis added).”

quoted by 1 later decision, including 589 So. 2d 336 - Massey v. State

Relies on 558 So. 2d 1091 - Long v. State · Grubbs v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1990-05-31

View the full empirical analysis of this case →

¶1*1331 James B. Gibson, Public Defender and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3GOSHORN, Judge.

¶4Nunziata appeals his sentence as an habitual offender pursuant to section 775.084, Florida Statutes (1984). He alleges that no written notice of the State's intention to seek enhancement of sentence as required by section 775.084(3)(b), Florida Statutes (1988)[1] appears of record. This court has recently held that the statute does not require the notice to be filed with the court, but only that the notice be served on the defendant and his attorney. Long v. State,558 So.2d 1091 (Fla. 5th DCA 1990). In the case at bar, however, the State does not contend that notice was served, but rather urges that "it does not appear that the defendant was harmed by the lack of written notice." "Harm" is not the test. Where no advance written notice is served in accordance with the statute, any subsequent habitual offender enhancement is illegal. Grubbs v. State,412 So.2d 27 (Fla. 2d DCA 1982).

¶5Sentence VACATED, REMANDED.

¶6COWART and PETERSON, JJ., concur.

NOTES

¶7[1] Section 775.084(3)(b) states:

¶8Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of a sentence so as to allow the preparation of a submission on behalf of the defendant.

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