Newton v. State , 581 So. 2d 212 ( 1991 )

581 So.2d 212 (1991)

Jerry D. NEWTON, Appellant,
v.
STATE of Florida, Appellee.

No. 90-1817.

District Court of Appeal of Florida, Fourth District.

June 5, 1991.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We affirm in all respects, except we remand to the trial court with directions to correct Newton's habitual offender sentences as to counts I-IV.

Newton was convicted of four counts of kidnapping pursuant to section 787.01(1)(a), Florida Statutes, and these convictions were enhanced to life felonies pursuant to section 775.087(1)(a), Florida Statutes, because Newton used a firearm during the kidnappings. The habitual felony offender statute, section 775.084, Florida Statutes, does not apply to life felonies. See Walker v. State, 580 So.2d 281 (Fla. 4th DCA 1991); Johnson v. State, 568 So.2d 519 (Fla. 1st DCA 1990). Therefore, we remand to the trial court to correct Newton's sentences for counts I-IV to reflect that he was not sentenced as an habitual offender on those counts.

We affirm Newton's habitual offender sentences as to counts V-VIII. Newton was sentenced as an habitual offender on four counts of armed robbery, a felony of the first degree punishable by imprisonment for a term of years not exceeding life imprisonment, pursuant to section 812.13(2)(a), Florida Statutes. We align ourselves with the third and fifth districts in holding that the habitual felony offender statute does permit the enhancement of first-degree felonies punishable by a term of years not exceeding life. See Westbrook v. State, 574 So.2d 1187 (Fla. 3d DCA 1991); Paige v. State, 570 So.2d 1108 (Fla. 5th DCA 1990). We note that this decision conflicts in this respect with the first district's interpretation of the habitual felony offender statute in Barber v. State, 564 So.2d 1169 (Fla. 1st DCA 1990), and Gholston v. State, 16 F.L.W. 46 (Fla. 1st DCA Dec. 17, 1990).

LETTS, GUNTHER and GARRETT, JJ., concur.