JOSEPH PAUL NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed denial of Rule 3.850 motion, holding that a negotiated guilty plea to three third-degree felonies with a ten-year sentence to avoid habitual offender classification was lawful, but remanded for correction of individual sentences to reflect five-year terms with concurrent running.
A negotiated plea of guilty to avoid habitual offender classification is lawful, and sentences imposed under the habitual offender statute are not subject to sentencing guidelines.
[1] A sentence imposed under the habitual offender statute is not subject to sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceNelson pleaded guilty to three third-degree felonies and agreed to a ten-year sentence to avoid potential thirty-year habitual offender classification…
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PER CURIAM.
We affirm the denial of appellant’s motion under Rule 3.850, Florida Rules of Criminal Procedure. Contrary to appellant’s contention, his negotiated plea of guilty to three third degree felonies, in which he agreed to a sentence of ten years, in order to avoid a sentence of up to thirty years as an habitual offender, is not unlawful. The state gave notice of its intention to seek habitual offender classification under section 775.084, Florida Statutes, pursuant to which appellant could have received a sentence of up to thirty years, since the sentence for each third degree felony could be increased to ten years. Further, contrary to appellant’s assumption, in reliance upon Whitehead v. State, 498 So. 2d 863 (Fla.1987), a sentence imposed under the habitual offender statute is not subject to the sentencing guidelines. See, subsection (4)(e), section 775.084, Florida Statutes, added by amendment, Chapter 88-131, Laws of Florida.
Although we affirm the order appealed, we note that the record discloses sentences of ten years on each of the three offenses. On remand, the court is instructed to correct the sentences to reflect a-sentence of five years for each offense, at least two of which shall run concurrently, or any other combination of sentences the court may in its discretion impose, not to exceed an aggregate sentence of ten years.
SMITH, ALLEN and DAVIS, JJ., concur.
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Viera v. State, 833 So. 2d 264 (Fla. 3d DCA 2002)…nt took the instant appeal. As to issue one, the state asserts and we agree that appellant is entitled to no relief inasmuch as the sentencing guidelines are inapplicable to habitual offender sentences. See § 775.084(4)(e) (1995); Nelson v. State, 632 So. 2d 206 (Fla. 1st DCA 1994). For that reason, appellant’s sentence for count 1 is not improper. As to issue three, the State, however, properly concedes that appellant is entitled to relief in the form of resentencing when the trial court resentenced appe…
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Cook v. State, 682 So. 2d 700 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. Fla. Stat. § 775.084(4)(g) (1995); Nelson v. State, 632 So. 2d 206 (Fla. 4th DCA 1994).…
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Pierre v. State, 767 So. 2d 570 (Fla. 3d DCA 2000)…PER CURIAM. Affirmed. See Studnicka v. State, 679 So. 2d 819, 821 (Fla. 3d DCA 1996); Nelson v. State, 632 So. 2d 206, 207 (Fla. 1st DCA 1994); Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992). See also State v. Kendrick, 596 So. 2d 1153 ( Fla. 5th DCA 1992).…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)