RICARDO PEREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ricardo Perez appeals his habitual felony offender classification and 35-year sentence for cocaine possession. The court agrees that Florida law prohibits habitualization for drug possession offenses and reverses the illegal sentence on that count while upholding the habitual offender sentence for his burglary and petit theft convictions.
Florida Statute section 775.084(1)(a)3 does not permit habitualization of a defendant for violations of section 893.13 (controlled substance possession). The 35-year habitual offender sentence for cocaine possession was illegally imposed and must be reversed, even though it was part of a plea agreement.
[1] A defendant cannot be classified as a habitual felony offender for a conviction of violating Florida Statutes section 893.13, relating to the purchase or possession of a…
[2] A trial court's imposition of a habitual felony offender sentence for a controlled substance possession offense is illegal, even if it results from a plea agreement.
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Join FLexlaw to unlock all legal intelligence“Section 775.084(l)(a)3., Florida Statutes (1993), does not permit the habitualization of a defendant where the felony for which the defendant is to be sentenced is a violation of section 893.13, Florida Statutes (1993), relating to the purchase or the possession of a controlled substance.”
Establishes the statutory prohibition on habitualization for drug possession offenses, the core legal principle of the case.
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Join FLexlaw to unlock all legal intelligenceIn November 1993, Perez was charged with cocaine possession. In February 1994, he was separately charged with burglary and petit theft. Perez entered …
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PER CURIAM.
Ricardo Perez appeals his habitual felony offender classification and resultant thirty- five year incarceration sentence for cocaine possession, arguing that this sentence is contrary to section 775.084(l)(a)3., Florida Statutes (1993). We agree.
In November, 1993, Perez was charged with cocaine possession. In February of 1994, Perez was also separately charged with burglary and petit theft. A plea hearing was subsequently held on both cases, to which Perez plead no contest. He also requested a furlough before his incarceration was to begin, in order to spend some time with his mother. The defense noted, and the court agreed, that Perez could be habitualized for the burglary and petit theft convictions, but not for the separate offense of cocaine possession, which carried a maximum penalty of five years incarceration. The trial court sentenced Perez to thirty-five years in prison as an habitual felony offender for the burglary and petit theft convictions, and then granted Perez a one-week furlough, on the condition that if he returned by a given date the court would mitigate his sentence to five years on the burglary and petit theft convictions, instead of imposing thirty-five years as a habitual felony offender. Perez failed to return from his furlough, and was later picked up by the police. The trial court issued a commitment order and sentenced Perez to thirty-five years as an habitual offender on the burglary/petit theft case and also to thirty-five years on the cocaine possession case, both sentences to be served concurrently.
Section 775.084(l)(a)3., Florida Statutes (1993), does not permit the habitualization of a defendant where the felony for which the defendant is to be sentenced is a violation of section 893.13, Florida Statutes (1993), relating to the purchase or the possession of a controlled substance. The State has conceded, and we agree, that the habitual felony offender classification and thirty-five year sentence the trial court imposed on Perez was appropriate for the burglary and petit theft convictions, but illegally imposed for the cocaine possession conviction, even if the sentence was a result of a plea agreement. See Thompson v. State, 599 So. 2d 244 (Fla. 1st DCA 1992).
Accordingly, we reverse the erroneously imposed thirty-five year concurrent sentence and habitual felony offender status for the cocaine possession case only, Circuit Court Case Number 93-36225, and remand for re-sentencing of that case to reflect a concurrent sentence appropriate to the third-degree felony of cocaine possession under section 893.13, Florida Statutes (1993). The habitu-alization and sentence for Circuit Court Case Number 94-3193 shall remain undisturbed.
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Watson Grene v. State, 702 So. 2d 510 (Fla. 3d DCA 1996)…4(l)(a)(3); Williams v. State, 667 So. 2d 914 (Fla. 3d DCA 1996); Houser v. [*511] State, 666 So. 2d 158 (Fla. 5th DCA 1995); Palmer v. State, 664 So. 2d 1162 (Fla. 5th DCA 1995); Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995); Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994); cf. Tucker v. State, 608 So. 2d 122 (Fla. 2d DCA 1992), aff'd on other grounds, 620 So. 2d 1241 (Fla.1993). Accordingly, appellant’s sentence for possession of a controlled substance is vacated and his enhanced sentence for poss…
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Marchell D. Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995)….084(l)(a)3, Florida Statutes (1993), does not permit habitualization where the felony for which the defendant is to be sentenced is a violation of section 893.13, relating to the purchase or possession of a controlled substance. See Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994). Thus, Jackson should not have been habitualized on Count II. The improper habitual offender adjudication on Count II of Case No. 93-34234 is therefore stricken. The habitual offender sentence imposed on Count I of Case No. 93-34…
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Belton v. State, 673 So. 2d 880 (Fla. 2d DCA 1996)…llant’s sentence was properly enhanced for delivery of cocaine under [*881] the habitual offender statute, the appellant can not receive a habitual offender sentence for possession of cocaine. See § 775.084(l)(a)3., Fla.Stat. (1993); Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994) (section 775.084(l)(a)3. does not permit habit-ualization of defendant when offense is possession of a controlled substance). In addition, the trial court erred in imposing a public defender’s lien of $500 without providing the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thompson v. State, 599 So. 2d 244 (Fla. 1st DCA 1992)