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State v. Jackson4/12/2005
m. app. filed. Therefore, the trial court's application of this enhancement factor was error, and we have concluded that the error was not harmless beyond a reasonable doubt.
The trial court also applied enhancement factor (9), that the Defendant "has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community," the trial court applied this factor because the Defendant committed this crime less than two years after he was previously convicted of possession of cocaine, and "he was back on the street doing the same thing s what he was doing on some form of release . . . ." We conclude that this factor was not admitted by the Defendant or found by a jury. Furthermore, as it is subject to Blakely, we conclude that the trial court erred when it applied this enhancement factor. This error, however, was harmless beyond a reasonable doubt. The Defendant's presentence report, which was admitted as an exhibit without objection during the sentencing hearing, indicates that the Defendant has had his probation revoked on one occasion. The Defendant was convicted of selling drugs and was sentenced to eight years on probation on July 16, 1998. This Defendant was found guilty of a probation violation, and he was ordered to serve the sentence in prison. Further, the Defendant was also convicted of possession of cocaine on May 17, 1999 and was sentenced to twelve years. Accordingly, we conclude that the trial court's application of this factor was harmless beyond a reasonable doubt.
Similarly, we conclude that the trial court erred when it applied enhancement factor (14). Although the Defendant's brief concedes that he was on probation, there is no evidence in the record that the Defendant admitted this factor during his trial or sentencing hearing. We conclude, therefore, that this factor was not admitted by the Defendant or found by a jury. We therefore conclude that the trial court erred when it applied this enhancement factor. This error, however, was harmless beyond a reasonable doubt because the Defendant's presentence report, which, as stated above, was admitted as an exhibit without objection during the sentencing hearing, indicates that the Defendant was on probation for selling drugs at the time this offense occurred. Accordingly, we conclude that the trial court's erroneous application of this factor was harmless beyond a reasonable doubt.
The trial court's erroneous application of two enhancement factors were harmless beyond a reasonable doubt, and, therefore, we conclude that the Defendant's sentence need not be modified. This issue is without merit.
III. Conclusion
In accordance with the foregoing authorities and reasoning, we reverse the Defendant's conviction and sentence for possession of a firearm with the intent to employ it in the commission of or escape from an offense, and we affirm the Defendant's conviction and sentence for possession with the intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free School Zone.
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