ARTHUR BELTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the appellant's convictions but reversed the habitual offender sentence for possession of cocaine and remanded for resentencing, also striking certain costs and fees.
[1] A defendant cannot receive a habitual offender sentence for the offense of possession of a controlled substance.
[2] A trial court errs by imposing a public defender's lien without providing the defendant notice or an opportunity to object.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of delivery and possession of cocaine and sentenced as a habitual offender. The trial court also imposed a public defender…
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PATTERSON, Acting Chief Judge.
The appellant challenges his judgment and sentences for delivery of cocaine and possession of cocaine. His appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree with counsel that there are no meritorious grounds for appeal as to the appellant’s convictions and, therefore, affirm. However, we reverse the appellant’s habitual offender sentence for possession of cocaine and remand for resentencing.
The trial court sentenced the appellant as a habitual offender to thirty years for delivery of cocaine and ten years for possession of cocaine. His sentences were suspended and he was placed on two years’ community control and two years’ probation. Although the appellant’s sentence was properly enhanced for delivery of cocaine under 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 appellant notice or an opportunity to object. The appellant may contest the attorney’s fees under Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992) (appellant can have fees stricken by filing an objection in the trial court within thirty days of mandate; fees may be reimposed after notice and hearing).
Finally, the court imposed $255 in court costs and $100 for a “drug fund” without stating the statutory authority for the imposition of these costs. Sutton v. State, 635 So. 2d 1032- (Fla. 2d DCA 1994) (written order must contain appropriate citation to statute authorizing cost). Thus, we strike those costs without prejudice to the state to seek reimposition of statutorily mandated costs on remand.
Reversed and remanded.
ALTENBERND and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)…s. First, as the State concedes, there is no legal authority permitting a ten-year term of imprisonment or a habitual offender sentence for the third-degree felony of possession of cocaine. See § 775.084(1)(a)(3), Fla. Stat. (1995); Belton v. State, 673 So. 2d 880 (Fla. 2d DCA 1996).5 Second, the five-year increase in the term of imprisonment in the written sentence clearly violates the rule that the written sentence must conform to the oral pronouncement. See D.F. v. State, 650 So. 2d 1097 (Fla. 2d DCA 1995)…
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Kirby v. State, 695 So. 2d 889 (Fla. 2d DCA 1997)…set forth the statutory authority for their imposition. The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order. Smith v. State, 686 So. 2d 8 (Fla. 2d DCA 1996); Belton v. State, 673 So. 2d 880 (Fla. 2d DCA 1996); Reyes, 655 So. 2d at 119. The remaining $2 was a discretionary cost imposed pursuant to section 943.25(13), Florida Statutes (1995). The court erred by failing to individually announce the $2 cost, failing to cite the statutory a…
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Ishmael v. State, 735 So. 2d 509 (Fla. 2d DCA 1999)…subject to correction by rule 3.800(a)). If Ishmael’s representations are true, he would be entitled to have the habitual felony offender sentences for these offenses set aside and to be resen-tenced pursuant to the guidelines. See Belton v. State, 673 So. 2d 880 (Fla. 2d DCA 1996). We reverse on Ishmael’s claim that his sentence for count one, possession of cocaine, is illegal because he has made a facially sufficient claim for relief unrefuted by the trial court’s order of denial. As conceded by the State…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994)
- Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992)
- Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994)