BERNARD WILLIAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bernard Williams was convicted of cocaine sale and possession offenses and sentenced as a habitual felony offender to twelve years imprisonment. The Third District affirmed the habitual felony offender designation but remanded for resentencing due to an incorrect guidelines scoresheet calculation.
The court held that: (1) § 775.084(1)(a)(3) limits predicate convictions to only purchase or possession offenses under § 893.13, not sale offenses, thus upholding Williams' habitual felony offender sentence; and (2) because the incorrect scoresheet recommended a range of 9 to 12 years and the judge imposed 12 years, remand for resentencing based on the correct scoresheet was necessary.
[1] Florida Statute § 775.084(1)(a)(3) limits the predicate offenses for habitual felony offender sentencing to those not involving the purchase or possession of controlled s…
[2] A defendant's sentence as a habitual felony offender may be affirmed even if the sentencing scoresheet contains an error, if the error does not affect the sentence impose…
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Join FLexlaw to unlock all legal intelligence“[t]he felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance”
The statutory language of § 775.084(1)(a)(3) that the court interpreted to limit predicate convictions to purchase or possession offenses, not sale offenses
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Join FLexlaw to unlock all legal intelligenceWilliams was convicted of sale of cocaine, possession of cocaine, and possession of drug paraphernalia. He was designated a habitual felony offender a…
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PER CURIAM.
The appellant was convicted of the sale of cocaine, possession of cocaine and possession of drug paraphernalia. At sentencing, he was determined to be a habitual felony offender and sentenced to twelve years imprisonment.
Williams first contends that his sentence as a habitual felony offender is not authorized by Florida Statute § 775.084(l)(a), (3) (1993) because that section does not permit a violation of Florida Statute § 893.13 to serve as a predicate conviction. Florida Statute § 775.084(l)(a), (3) states that “[t]he felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance; .... ” Williams asserts that the words purchase or possession in that section merely serve to generally describe Florida Statute § 893.13 and do not limit the application of § 775.084(l)(a), (3) to only purchase or possession offenses. We do not agree.
The Fifth District has applied section 775.084(l)(a), (3), Florida Statutes (1993) in this context to only purchase or possession offenses. See Houser v. State, 666 So. 2d 158 (Fla. 5th DCA 1995); Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995). In addition, Williams’ contention that there is no reason to treat the sale of cocaine differently than the purchase or possession of cocaine is eom-pletely without merit. Therefore we affirm Williams’ habitual felony offender sentence.
Williams next contends that his score-sheet incorrectly assessed 42 points for the additional offense of possession of cocaine. The state concedes that the scoresheet was incorrectly calculated and that the correct point total should be 175, rather than the 209 currently reflected on the scoresheet. The state asserts however, that the guidelines do not apply when a defendant is habitualized and so the sentence need not be remanded for correction.
The lower court judge sentenced Williams to 12 years in prison. The incorrect score-sheet showed a recommended range of 9 to 12 years. Although the judge was permitted to impose a sentence of up to 30 years, it is possible that he referred to the incorrect scoresheet during sentencing. Therefore, in an abundance of caution, we remand for re-sentencing based upon a correctly calculated scoresheet. See Parker v. State, 506 So. 2d 86 (Fla. 2d DCA 1987).
Affirmed in part; reversed in part and remanded for resentencing.
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Watson Grene v. State, 702 So. 2d 510 (Fla. 3d DCA 1996)…75.084(l)(a)(3) (emphasis added). Here, since possession with intent to sell is a violation of § 893.13 which relates to the possession of a controlled substance, habitual offender sentencing was improper. See § 775.084(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. Tucke…
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Moore v. State, 748 So. 2d 1094 (Fla. 3d DCA 2000)…atute does not prohibit habitualization where the offense at conviction is sale of a controlled substance, nor does it prohibit the use of one or more prior convictions for sale of a controlled substance as predicate offenses. See Williams v. State, 667 So. 2d 914, 915 (Fla. 3d DCA 1996). Affirmed.…
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Ellis v. State, 703 So. 2d 1186 (Fla. 3d DCA 1997)…approved however, because Ellis, as in Grene, was charged with and convicted only of a possession with intent to sell violation of section 893.13, Florida Statutes, not with the actual sale of the controlled substances, see, e.g. Williams v. State, 667 So. 2d 914 (Fla. 3d DCA 1996), and the habitual felony offender statute clearly exempts such convictions from its coverage without any limitation based on the amount of substance possessed or the defendant’s subjective intent regarding personal use. Further, d…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marchell D. Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995)
- Houser v. State, 666 So. 2d 158 (Fla. 5th DCA 1995)
- Parker v. State, 506 So. 2d 86 (Fla. 2d DCA 1987)