Additional Findings Beyond the Bare Fact of a Prior Conviction Are Required Before It Can Be Used As An Aggravating Circumstance
In United States v. Breitweiser, the court pointed out:
If a recidivist statute permitted enhancement based on proof of underlying conduct, however, factual questions could arise as to exactly what conduct the defendant engaged in.
Typically, such factual questions are within the province of a jury and this Court doubts that the Supreme Court would construe Almendarez-Torres as applying to such situations. 220 F. Supp. 2d 1374, 1379 (N.D. Ga. 2002).
Likewise, Florida's sentencing scheme requires additional findings beyond the bare fact of a prior conviction before it can be used as an aggravating circumstance.
Section 921.141(5)(b), Florida Statutes (2002) permits the finding of an aggravating circumstance where "the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person."
Hence, other than a conviction of a capital felony, the trial judge must find that a felony conviction involved the use or threat of violence before this aggravating circumstance is proven.
Hess v. State, 794 So. 2d 1249, 1264 (Fla. 2001) (finding lewd assault on a child was not a per se crime of violence and "thus, the state had the burden of proving that this crime involved violence or the threat of violence under the actual circumstances in which it was committed");
Sweet v. State, 624 So. 2d 1138, 1143 (Fla. 1993) (stating although possession of a firearm by a convicted felon is not "per se a crime of violence, the circumstances of this particular crime were shown to have been violent, as Sweet used the firearm to hit someone in the face and ribs");
Gore v. State, 706 So. 2d 1328, 1333 (Fla. 1998) (finding facts surrounding defendant's armed trespass of a conveyance qualified as a prior violent felony where testimony established he was "crouching behind the front seat of a woman's car with a loaded gun and a police scanner");
Brown v. State, 473 So. 2d 1260, 1266 (Fla. 1985) (finding facts contained in a presentence investigation for conviction of arson of an unoccupied building supported finding the prior violent felony aggravating circumstance);
Johnson v. State, 465 So. 2d 499, 505 (Fla. 1985) ("Whether a previous conviction of burglary constitutes a felony involving violence . . . depends on the facts of the previous crime.
Those facts may be established by documentary evidence, including the charging or conviction documents, or by testimony, or by a combination of both.").