TERRY MCKNIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this direct criminal appeal, the court reversed a defendant's habitual offender sentence for cocaine possession, holding that such sentencing is prohibited by Florida law and constitutes fundamental error that may be raised for the first time on appeal even without trial court objection.
The court held that the 10-year habitual offender sentence for possession of cocaine constitutes fundamental error that may be raised for the first time on appeal, relying on the recent en banc decision in Nelson v. State. Accordingly, the sentence was reversed and the case remanded for resentencing on that offense.
[1] A habitual offender sentence for possession of cocaine constitutes fundamental error, which may be raised for the first time on appeal, even without an objection in the t…
[2] Habitual offender sentencing is expressly prohibited for violations relating to the purchase or possession of a controlled substance.
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Join FLexlaw to unlock all legal intelligence“habitual offender sentencing is expressly prohibited for possession of cocaine, and the sentence exceeds the maximum permissible non-habitual offender sentence for that offense”
Establishes the legal basis for finding fundamental error in the sentencing.
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Join FLexlaw to unlock all legal intelligenceTerry McKnight was convicted of possession of cocaine and received a 10-year habitual offender sentence for that offense. Appointed counsel initially …
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WEBSTER, Judge.
In this direct criminal appeal, appellant’s appointed counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant also filed a brief in proper person. In her Anders brief, counsel noted that appellant had received a 10-year habitual offender sentence for possession of cocaine. Following our independent review of the record, we determined that a potential issue existed — whether, notwithstanding failure to object in the trial court, appellant’s 10-year habitual offender sentence for possession of cocaine constitutes fundamental error which may be raised for the first time on appeal because habitual offender sentencing is expressly prohibited for possession of cocaine, and the sentence exceeds the maximum permissible non-habitual offender sentence for that offense. See § 775.084(l)(a)3., Fla. Stat. (Supp. 1996) (prohibiting habitual offender sentencing for violations of section 893.13, Florida Statutes, “relating to the purchase or the possession of a controlled substance”); § 893.13(6)(a), Fla. Stat. (Supp. 1996) (making possession of a controlled substance a third-degree felony). Accordingly, we ordered the parties to brief that issue, pursuant to State v. Causey, 503 So. 2d 321 (Fla.1987).
Based upon our recent decision in Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998) (general division en banc), we hold that appellant’s 10-year habitual offender sentence for possession of cocaine constitutes fundamental error, which may be raised for the first time on appeal. Accordingly, we reverse appellant’s sentence for possession of cocaine and remand for resentencing as to that offense. Also as in Nelson, we certify conflict with Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). In all other respects, we affirm.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
MINER, J., and SMITH, LARRY G., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…tence was imposed in violation of the statutory requirements. See Speights, 711 So. 2d at 168; Edwards, 707 So. 2d at 969; Jerry v. State, 732 So. 2d 500 (Fla. 5th DCA), review granted, 744 So. 2d 454 (Fla.1999) (Case No. 95,866); McKnight v. State, 759 So. 2d 686 (Fla. 1st DCA 1998), review granted, 729 So. 2d 394 (Fla.1999) (Case No. 94,256); Smith v. State, 721 So. 2d 455 (Fla. 5th DCA 1998), review granted, 729 So. 2d 394 (Fla.1999) (Case No. 94,703). In Speights, the First District certified the followin…1 / 2
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Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002)…ve jurors and, thus, we affirm the conviction without further discussion. See Hooper v. State, 703 So. 2d 1143, 1145 (Fla. 4th DCA 1997). As to the sentencing issue, the state mistakenly concedes that, pursuant to the authority of McKnight v. State, 759 So. 2d 686 (Fla. 1st DCA 1998), approved sub nom., State v. McKnight, 764 So. 2d 574 (Fla.2000); and Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998), the trial court erred in classifying appellant as a habitual felony offender under section 775.084(l)(a)(…
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State v. McKNIGHT, 764 So. 2d 574 (Fla. 2000)…PER CURIAM. We have for review McKnight v. State, 759 So. 2d 686 (Fla. 1st DCA 1998), a decision of the First District Court of Appeal certifying conflict with the decision of the Fifth District in Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998), approved in part, disapproved in part, 760 So. 2d 89 (Fla.2000)…
Previewing 3 of 4 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)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)