       Third District Court of Appeal
                                State of Florida

                         Opinion filed December 27, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D17-1216
                          Lower Tribunal No. 98-25761
                              ________________

                              Carlos Jose Garcia,
                                       Appellant,

                                          vs.

                             The State of Florida
                                       Appellee.


      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.

      Jonathan Arias, for appellant.

      Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken,
Assistant Attorney General, for appellee.

Before FERNANDEZ, LUCK and LINDSEY, JJ.

      LUCK, J.
        Carlos Jose Garcia appeals the trial court’s order denying his Florida Rule of

Criminal Procedure 3.800(a) motion to correct his illegal habitual violent felony

offender sentence. We affirm.

          In 1995, Garcia pleaded guilty to committing aggravated assault with a

firearm, and was sentenced to probation. While on probation, in 1996, Garcia

committed armed robbery. A jury found Garcia guilty of the armed robbery

charge, and he was sentenced, in 1999, to forty years in state prison, with a fifteen

year minimum mandatory sentence, as an habitual violent felony offender.

        Garcia contends that his habitual violent felony offender designation was

illegal because his 1995 aggravated assault conviction could not be used as a

qualifying offense to enhance his sentence.                Garcia points to section

775.084(1)(b)(2)(a), Fla. Stat. (Supp. 1998), which provided that the trial court

may impose an extended term of imprisonment if the court found the defendant

committed his felony while serving “a prison sentence or other commitment.”1 His

1995 probation sentence, Garcia argues, did not qualify as “a prison sentence or

other commitment,” and therefore, could not serve as a basis to enhance his 1999

armed robbery sentence. See Hightower v. State, 630 So. 2d 1220, 1221 (Fla. 2d

DCA 1994) (“[I]f community control cannot be included in the definition of ‘other




1   This part of section 775.084 has since been amended.

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commitment,’ then probation, which is a less restrictive form of control, also

should not be included.”).

      But as the trial court explained in its well-reasoned order, Garcia ignored the

next sentence in the habitual violent felony offender statute.               Section

775.084(1)(b)(2)(b) provided that the defendant’s sentence also may be enhanced

if his felony was committed “[w]ithin 5 years of the date of the conviction” of an

earlier qualifying prior felony. § 775.084(1)(b)(2)(b), Fla. Stat. (Supp. 1998). The

complete provision read:

      “Habitual violent felony offender” means a defendant for whom the
      court may impose an extended term of imprisonment . . . if it finds
      that . . . .

      The felony for which the defendant is to be sentenced was committed:

      a. While the defendant was serving a prison sentence or other
      commitment imposed as a result of a prior conviction for an
      enumerated felony; or

      b. Within 5 years of the date of the conviction of the last prior
      enumerated felony, or within 5 years of the defendant’s release from a
      prison sentence or other commitment imposed as a result of a prior
      conviction for an enumerated felony, whichever is later.

Id. § 775.084(1)(b) (emphasis added). That is, the defendant’s sentence may be

enhanced if he committed his most recent felony: (a) while serving “a prison

sentence or other commitment”; or (b) within five years of a qualifying prior

felony.    (Aggravated assault was a qualifying prior felony.                  Id. §

775.084(1)(b)(1)(g).)


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      Garcia’s 1995 aggravated assault probation sentence did not count as a

“prior sentence or other commitment,” but it did count as a qualifying prior felony

committed within five years of the armed robbery.            Unlike the Hightower

defendant, who did not qualify under either subsection of the habitual felony

offender statute, Garcia’s sentence was due to be enhanced under section

775.084(1)(b)(2)(b) because he had committed aggravated assault less than five

years earlier, even if he didn’t qualify for the enhancement under subsection (a).

See Hightower, 630 So. 2d at 1221 (“Because Hightower did not commit the

present felony within five years of his 1984 conviction, we reverse the habitual

violent felony offender sentence and remand for resentencing within the

guidelines.”).

      In his initial brief, Garcia also contends that his habitual violent felony

offender sentence was illegal because the 1995 probation sentence could not be

counted as a “conviction” for purposes of section 775.084(1)(b)(2)(b). Because

this issue was raised for the first time on appeal, we decline to address it. See

Hutchinson v. State, 17 So. 3d 696, 703 n.5 (Fla. 2009) (“Even if we were to

accept Hutchinson’s contention that he is actually arguing ineffectiveness due to

trial counsel’s failure to present evidence of his innocence to the jury, such a claim

is not cognizable on this appeal because it is being raised for the first time.”);

Connor v. State, 979 So.2d 852, 866 (Fla. 2007) (“This confrontation issue was not



                                          4
raised at the trial level and was not raised in the 3.851 motion. Because the issue

may not be heard for the first time on appeal of a postconviction motion, we deny

relief on this issue.”); Carter v. State, 43 So. 3d 907, 908 (Fla. 3d DCA 2010) (“We

decline to address the ineffective assistance of counsel issue because it was not

raised in the court below.”).    But even if we did, we would reject Garcia’s

argument because the habitual violent felony offender statute treated a probation

sentence as a prior conviction where the defendant, like Garcia, committed his

most recent felony while on probation. See § 775.084(2), Fla. Stat. (Supp. 1998)

(“For the purposes of this section, the placing of a person on probation or

community control without an adjudication of guilt shall be treated as a prior

conviction if the subsequent offense for which the person is to be sentenced was

committed during such period of probation or community control.”). In Render v.

State, 742 So. 2d 503 (Fla. 3d DCA 1999), the defendant raised the same argument

that “his prior grand theft conviction could not be used for habitualizing him

because he had been placed on probation” (and his probation had expired). Id. at

504. We held that the “grand theft conviction was properly treated as a predicate

offense by the trial court” because “there was no withholding of adjudication.

Appellant was adjudicated guilty.” Id. Here, too, Garcia was adjudicated guilty of

aggravated assault with a firearm and placed on probation within five years of his

armed robbery conviction.



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      The trial court properly denied Garcia’s motion to correct his illegal

sentence.

      Affirmed.




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