District Court of Appeal of Florida, First District.
*22 Nancy A. Daniels, Public Defender; Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant (Elmer) appeals his sentences for robbery with a firearm and aggravated battery following his conviction by a jury. He was sentenced to thirty years in prison for robbery with a firearm and fifteen years in prison for aggravated battery, both to run concurrently with each other.
The trial court found that Elmer qualified as an habitual violent felony offender. Elmer argues that this was error because one of the predicate offenses relied upon to so classify him was committed after the instant offenses for which he was sentenced. We agree. Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997).
The trial judge also designated the sentences as departure sentences, pursuant to section 921.0016(3)(r), Florida Statutes (1995), in that robbery with a firearm is a level 9 offense, and one of Elmer's previous offenses was a level 8 or higher offense. We agree with the State that the sentences imposed upon Elmer qualify as departure sentences.
Accordingly, we affirm the imposition of concurrent sentences of thirty years for robbery with a firearm and fifteen years for aggravated battery, but remand to the trial court with instructions that the classification of Elmer as an habitual violent felony offender be vacated. It is not necessary that Elmer be present for this sentence modification.
WOLF, KAHN and LAWRENCE, JJ., CONCUR,
