CLARKE v. STATE, 4D05-1077 (Fla.App. 4 Dist. 9-20-2006)

No. 4D05-1077.District Court of Appeal of Florida, Fourth District.
September 20, 2006.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey R. Levenson, Judge, L.T. Case No. 04-04679CF10A.

Carey Haughwout, Public Defender, and David John McPherrin, 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.

PER CURIAM.

Appellant was convicted of kidnapping and aggravated assault. The only issue he raises which has merit is whether Bahamian convictions were qualifying offenses for a habitual offender sentence. The state did not establish that the three Bahamian crimes, which were the basis for the harsher sentence, had elements which were similar to Florida offenses and were punishable by more than one year of imprisonment, as is required by section 775.084(1)(e), Florida Statutes (2003). We accordingly affirm the convictions, but reverse the habitual offender sentence and remand so that the state can present evidence to establish both that the elements of the Bahamian offenses were similar, and that they are punishable by imprisonment “exceeding one year.”

WARNER, KLEIN and GROSS, JJ., concur.

Not final until disposition of timely filed motion forrehearing.