AUGUSTA HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be sentenced as a habitual felony offender for possession of a controlled substance if that offense is a violation of section 893.13.
[1] A defendant cannot be sentenced as an habitual felony offender for the offense of possession of a controlled substance if that offense is a violation of section 893.13, F…
[2] An habitual offender sentence imposed for a violation of section 893.13, Florida Statutes, must be reversed, even if the sentencing is imposed pursuant to a plea agreemen…
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded no contest to possession of cocaine and burglary, agreeing to be sentenced as a habitual offender. The trial court imposed concurren…
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JOANOS, Judge.
Appellant contends the trial court erred in imposing an habitual felony offender sentence for the offense of possession of cocaine. We agree, and reverse the sentence imposed in circuit court ease 94-1608.
In separate informations, appellant was charged with possession of crack cocaine in circuit court case 94-1608, and with burglary of a conveyance in circuit court case 94-1686. On April 12, 1995, appellant signed a written plea agreement, in which he pled no contest to the charged offenses, with the understanding that he would be sentenced as an habitual offender to concurrent 10-year terms of incarceration. At the plea and sentencing proceeding, appellant stipulated that he met the criteria for classification as an habitual offender. The trial court adjudicated appellant guilty and imposed concurrent 10-year habitual offender sentences, in accordance with the plea agreement.
Section 775.084(l)(a)3., Florida Statutes, provides that a defendant may be sentenced as an habitual offender provided “[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.” Since possession of crack cocaine is a violation of section 893.13, the habitual offender statute does not permit ha-bitualization for appellant’s conviction in circuit court ease 94-1608. See Jefferson v. State, 657 So. 2d 14 (Fla. 4th DCA 1995); Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995); Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994). Even though sentencing is imposed pursuant to a plea agreement, an habitual offender sentence imposed for a violation of section 893.13 must be reversed. Thompson v. State, 599 So. 2d 244, 245 (Fla. 1st DCA 1992).
Accordingly, appellant’s sentence imposed for the offense of possession of crack cocaine is reversed and remanded for resentencing pursuant to the sentencing guidelines.
MICKLE and LAWRENCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Arlecia Michelle Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997)…ation. The appellant challenges only the habitual offender sentences for her two convictions for possession of cocaine. Section 775.084(l)(a)3 excludes from habitual offender sentencing the crime of possession of cocaine. See, e.g., Hayes v. State, 677 So. 2d 304 (Fla. 1st DCA 1996). The state concedes it was error to habitualize the appellant on the two possession counts but argues that the appellant is precluded from raising the issue on appeal because she failed to raise the issue at sentencing or in a ti…
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Rollins v. State, 707 So. 2d 823 (Fla. 3d DCA 1998)…be sentenced and one of the two prior predicate felony convictions involves a violation of section 893.13 relating to the purchase or possession of a controlled substance. See Gagger v. State, 699 So. 2d 347, 347 (Fla. 5th DCA 1997); Hayes v. State, 677 So. 2d 304, 305 (Fla. 1st DCA 1996). In this case, Rollins was convicted of aggravated battery with a deadly weapon and not a violation of section 893.13. He had two prior felony convictions, one of which was for possession of a controlled substance as prescr…
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Woods v. State, 807 So. 2d 727 (Fla. 1st DCA 2002)…nce, regardless of the nature of the prior crimes used to establish the predicate for an enhanced sentence. See McKnight v. State, 759 So. 2d 686 (Fla. 1st DCA 1998); decision approved by State v. McKnight, 764 So. 2d 574 (Fla.2000); Hayes v. State, 677 So. 2d 304 (Fla. 1st DCA 1996). In contrast, a defendant who is convicted of any other crime would not be exempted by this part of the statute based on the nature of the offense alone. For example, a defendant convicted of trafficking or sale of cocaine would…
Authorities Cited
- Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994)
- Marchell D. Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995)
- Thompson v. State, 599 So. 2d 244 (Fla. 1st DCA 1992)
- Jefferson v. State, 657 So. 2d 14 (Fla. 4th DCA 1995)