EDWARD A. BLATCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Blatch appealed his conviction and sentences for cocaine sale/delivery near a school and cocaine possession. The appellate court reversed his ten-year enhanced sentence for the possession charge because Florida law does not permit a possession conviction to enhance a sentence under the habitual offender statute, and the sentence exceeded statutory maximums.
The court held that Blatch's ten-year enhanced sentence for possession of cocaine is illegal because section 775.084(1)(a)3 does not permit a possession violation to serve as a predicate conviction for habitual offender enhancement. The sentence exceeded both the statutory maximum of five years and the maximum guidelines sentence of 7.6 years. The court also directed correction of the scrivener's error on remand regarding the entry of judgment.
[1] A sentence as an habitual felony offender is not authorized when the felony for which the defendant is to be sentenced is a violation of section 893.131, Florida Statutes…
[2] A defendant may challenge an illegal sentence on direct appeal, even without a timely objection at trial or a motion to correct the sentence, if the enhanced sentence exc…
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Join FLexlaw to unlock all legal intelligence“he may still challenge it on direct appeal as illegal because the ten-year enhanced sentence exceeds both the statutory maximum pursuant to sections 893.13(6)(a) and 775.082(3)(d) (5 years), and the maximum guidelines sentence (7.6 years)”
Establishes that Blatch could challenge his illegal sentence on direct appeal despite not timely objecting at trial, because the sentence exceeded statutory and guidelines maximums
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Join FLexlaw to unlock all legal intelligenceBlatch was convicted of sale or delivery of cocaine within one thousand feet of a school and possession of cocaine. He was sentenced as a habitual off…
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POLEN, Judge.
Edward A. Blatch timely appeals from an adjudication of guilt and sentences imposed for sale or delivery of cocaine within one thousand feet of a school, and for possession of cocaine. He was sentenced as an habitual offender on the sale and delivery count to a twenty-year prison term with a three-year mandatory minimum, and on the possession count to a concurrent term of ten years, also as an habitual offender. He correctly contends that his sentence as an habitual felony offender for possession of cocaine is not authorized by section 775.084(l)(a)3, Florida Statutes (1997), because that section does not permit a violation of section 893.131 to serve as a predicate conviction.2
Although he did not object at trial or move to correct his sentence timely, he may still challenge it on direct appeal as illegal because the ten-year enhanced sentence exceeds both the statutory maximum pursuant to sections 893.13(6)(a) and 775.082(3)(d) (5 years), and the maximum guidelines sentence (7.6 years). See Hyden v. State, 715 So. 2d 960 (Fla. 4th DCA 1998).
Furthermore, and as the state correctly concedes, there is a scrivener’s error on the face of Blatch’s judgment indicating that he pled nolo contendere to the charges, rather than having been found guilty by the trial court. Although he did not move to correct this error timely below, because we are reversing his sentence on the possession charge, we instruct the court on remand to also correct this error. As to Blatch’s remaining point on appeal concerning the witness’ lay opinion regarding the appearance of appellant’s tooth, we affirm.
AFFIRMED in part; REVERSED in part and REMANDED.
GROSS and TAYLOR, JJ., concur. . Section 893.13, Florida Statutes (1997) prohibits "any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.”
. Section 775.084(l)(a)3, Florida Statutes (1997) specifically allows the courts to impose an extended term of imprisonment for a habitual felony offender if it finds 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.... ”
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State v. Carter, 835 So. 2d 259 (Fla. 2002)…QUINCE, J. We have for review Carter v. State, 24 Fla. L. Weekly D1063, — So. 2d -, 1999 WL 289215 (Fla. 1st DCA April 30, 1999), which expressly and directly conflicts with Schwartz v. State, 719 So. 2d 965 (Fla. 4th DCA 1998), and Strunk v. State, 728 So. 2d 320 (Fla. 5th DCA 1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Because the district court in Carter applied a per se rule to the question of whether the failure to file a single…1 / 2
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Strunk v. State, 728 So. 2d 320 (Fla. 5th DCA 1999)…n probation is maintained. If the court cannot insist that these reports be filed, then probation ceases to be a viable alternative to incarceration.” 711 So. 2d at 55. Finally, we agree with the holding of the Fourth District in Schwartz v. State, 719 So. 2d 965 (Fla. 4th DCA 1998), that the failure to file a monthly report can be a sufficient ground for revocation of probation. AFFIRMED. PETERSON, J., concurs. W. SHARP, J., dissents, without opinion.…
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Delee v. State, 816 So. 2d 677 (Fla. 3d DCA 2002)…substantial violation of probation. While we recognize there may be exceptions, we find once is enough. See Strunk v. State, 728 So. 2d 320 (Fla. 5th DCA 1999)(failure to file one monthly report sufficient ground for revocation); Schwartz v. State, 719 So. 2d 965 (Fla. 4th DCA 1998)(same); Burgin v. State, 623 So. 2d 575 (Fla. 1st DCA 1993)(same). But see Carter v. State, — So. 2d -, 24 Fla. L. Weekly D1063, 1999 WL 289215 (Fla. 1st DCA 1999) review granted, 740 So. 2d 528 (Fla.1999)(one report by itself is…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hyden v. State, 715 So. 2d 960 (Fla. 4th DCA 1998)