NICHOLAS GREGORY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nicholas Gregory was convicted of drug offenses and sentenced as a habitual felony offender. The court reversed his habitual offender designation for the possession with intent to sell cocaine offense, finding that such a designation cannot be imposed under Florida law for possession of a controlled substance, and remanded for resentencing.
The court held that a habitual offender designation cannot be imposed for possession of a controlled substance. The habitual offender sentence for possession with intent to sell cocaine was reversed and the case was remanded for resentencing without the habitual offender designation. The court also noted that special conditions of probation must be orally pronounced at sentencing.
[1] A habitual offender sentence cannot be imposed for possession of a controlled substance.
[2] A serious, patent sentencing error, such as the erroneous imposition of a habitual offender sentence for possession with intent to sell a controlled substance, may be cor…
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Join FLexlaw to unlock all legal intelligence“Because the habitual offender designation cannot be imposed for possession of a controlled substance, we reverse the sentence imposed for that offense and remand for resentencing without regard to the habitual offender statute.”
Statement of the court's holding on the primary issue regarding the illegality of the habitual offender designation for possession offenses.
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Join FLexlaw to unlock all legal intelligenceGregory was convicted by jury of sale of cocaine, possession with intent to sell cocaine, and possession of drug paraphernalia. He was sentenced as a …
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PER CURIAM.
Nicholas Gregory was convicted after a jury trial of sale of cocaine, possession with intent to sell cocaine and possession of drug paraphernalia. He was sentenced as a habitual felony offender to concurrent sentences of nine years followed by ten years of probation on the sale and possession with intent offenses. He was also sentenced to one year in county jail for possession of paraphernalia. He challenges the habitual offender designation for possession with intent to sell, and he challenges certain conditions of probation. Because the habitual offender designation cannot be imposed for possession of a controlled substance, we reverse the sentence imposed for that offense and remand for resentencing without regard to the habitual offender statute.
At the sentencing hearing, there was no objection to habitual offender sentencing for the sale of cocaine nor for the possession with intent to sell cocaine.
Additionally, Gregory did not challenge his sentence by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800. The State therefore argues that the habitual offender and probation condition issues have not been preserved for appellate review.
However, based on our decision in Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998), we can correct an illegal sentence or any serious, patent sentencing error. In this case, the erroneous imposition of a habitual offender sentence for possession with intent to sell a controlled substance is a serious, patent sentencing error. We reverse the habitual offender sentence imposed for possession with intent to sell cocaine and remand for resentencing. We also note that any special conditions of probation should be orally pronounced at sentencing. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA1995).
ALTENBERND, A.C.J., FULMER, J., and QUINCE, PEGGY A., Associate-Judge, Concur.
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Citator
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…roper habitualization “because habitual offender sentencing is expressly prohibited for possession of cocaine, and the sentence exceeds the maximum permissible non-habitual offender statute for that offense.” 759 So. 2d at 686; see Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999) (correcting the same type of unpreserved error although defendant pleaded guilty, because it is serious and patent); Denson, 711 So. 2d at 1230 (same); see also Nelson, 719 So. 2d at 1232-33 (correcting habitual offender sentence…
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Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999)…does not apply to violations of section 893.13, Florida Statutes (1995), “relating to the purchase or possession of a controlled substance.” Thus, a habitual offender sentence is not allowed for possession with intent to sell. See Gregory v. State, 739 So. 2d 100, 24 Fla. L. Weekly D256 (Fla. 2d DCA 1999). On remand for resentencing, the trial court shall orally pronounce any special conditions of probation that it seeks to impose. See Gregory. Habitual offender sentence for possession of cocaine with int…
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Cal King v. State, 745 So. 2d 1009 (Fla. 2d DCA 1999)…lony offender sentencing for convictions relating to the purchase or possession of a controlled substance. Even though King failed to object to the sentence before the trial court, he has not waived this issue on direct appeal. See Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999) (holding that the erroneous imposition of a habitual offender sentence for possession of a controlled substance is a serious, patent sentencing error that may be reviewed for the first time on direct appeal). Accordingly, we rev…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)