WESTBERRY v. STATE (2005)

Deoin Westberry a/k/a Deion Westberry, sentenced as an habitual offender, appeals from the trial court's denial of post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800.   We affirm.

Westberry asserts in part that he did not qualify for habitual offender sentencing because his prior convictions did not satisfy the sequential sentencing requirement of section 775.084(5), Florida Statutes (2004).   See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001)(although sentencing for separate convictions arising from unrelated crimes can take place on same day, sentences cannot be part of same sentencing proceeding;  those separate convictions in same proceeding cannot be considered “sequential” for purposes of habitualization).   Westberry also argues that the state incorrectly relied upon an offense for which he received a withhold of adjudication and probation.

If Westberry's probation sentences in case numbers 02-366 and 01-33456 were the sole prior convictions upon which the state relied for habitualization, Westberry would be correct, as the record reflects that those sentences were imposed on the same day (May 29, 2002).   However, the state also relied upon the defendant's prior withhold of adjudication in case number 97-14598.   Section 775.084(2), Florida Statutes (2002) provides that “the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.” [e.s.] Thus, the prior withhold in case number 97-14598, and either of the two convictions sentenced on the same day in May 2002 (02-366, or 01-33456) were appropriately relied upon for imposition of habitual offender sentencing in the current case number 02-24481.   Westberry's habitual offender sentence is legal, and we therefore affirm the trial court's order denying post-conviction relief.

Affirmed.

FLETCHER, Judge.