NEWKIRK v. STATE (2005)

District Court of Appeal of Florida,Fourth District.

Mitchell NEWKIRK, Appellant, v. STATE of Florida, Appellee.

No. 4D04-236.

Decided: March 16, 2005

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

Mitchell Newkirk seeks reversal on direct appeal of his habitual felony offender sentence. As grounds, he argues that the evidence of his predicate convictions was insufficient because the state failed to offer expert fingerprint analysis. The state had a fingerprint expert ready to testify at the sentencing hearing; the only reason the state did not call its expert was because defense counsel indicated no fingerprint analysis was necessary.

We affirm Newkirk's sentence because defense counsel's conduct at the hearing was tantamount to a concession that no error occurred. This is, of course, without prejudice to Newkirk filing a 3.850 motion for post-conviction relief.

Affirmed.

PER CURIAM.

STONE, GROSS and HAZOURI, JJ., concur.

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