Johnson v. State

¶1Frederick Johnson appeals his conviction and sentence as a habitual violent felony offender. We find merit in only one of the points raised. Johnson correctly contends that reliance on a prior conviction to support a finding of habitual offender status is reversible error when the prior conviction is being appealed at the time of sentencing. Delguidice v. State, 554 So.2d 35 (Fla. 4th DCA 1990); Coleman v. State, 281 So.2d 226 (Fla. 2d DCA 1973). A review of the record reveals the trial court erred in determining Johnson’s status as a violent felony offender relying on robbery and kidnapping convictions which were on appeal. See Johnson v. State, 579 So.2d 400 (Fla. 2d DCA 1991). Accordingly, we reverse and remand for resentencing.