BRUCE COLEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant sentenced to probation cannot be resentenced as an habitual felony offender upon revocation of that probation.
Coleman was sentenced to probation as an habitual felony offender. Upon revocation of probation, he received a longer sentence as an habitual felony o…
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ON SUPPLEMENTAL MOTION FOR CLARIFICATION
PER CURIAM.
We grant the supplemental motion for clarification, withdraw our previous opinion, and substitute the following opinion.
We review the order of the trial court denying appellant’s motion for post-conviction relief which alleged his right to be resentenced under the 1994 sentencing guidelines. Coleman was sentenced after revocation of probation to a 111 month sentence. Our review of the record reveals that while this is a bottom-of-the-guidelines sentence, it was imposed on Coleman as an habitual felony offender. At his original sentencing hearing in 1996, Coleman was designated as an habitual felony offender and placed on probation for two years.
Coleman’s two-year probation sentence was not an habitual offender sentence. Therefore, he cannot be sentenced as an habitual offender upon revocation of probation. See McFadden v. State, 778 So. 2d 1287 (Fla. 4th DCA 2000).
There is no dispute that Coleman committed his offenses within the operative window period in which to challenge the sentencing guideline provisions amended by Chapter 95-184, Laws of Florida. See Trapp v. State, 760 So. 2d 924, 928 (Fla.2000).
Consequently, Coleman must be sentenced according to the 1994 sentencing guidelines.
AFFIRMED.
GUNTHER, STONE and GROSS, JJ., concur.
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Delvin Jones v. State, 781 So. 2d 486 (Fla. 4th DCA 2001)…PER CURIAM. AFFIRMED, without prejudice to appellant presenting his claim based on King v. State, 681 So. 2d 1136 (Fla.1996), in a properly filed post-conviction relief motion. See also Coleman v. State, 777 So. 2d 1132 (Fla. 4th DCA 2001). DELL, FARMER and KLEIN, JJ., concur.…
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ORR v. State, 793 So. 2d 48 (Fla. 4th DCA 2001)…habitual offender term. Id. Thus, this court concluded that appellant could not be sentenced as a habitual offender upon revocation of probation, notwithstanding his plea agreement to be sentenced as a habitual offender. Id.Accord Coleman v. State, 777 So. 2d 1132 (Fla. 4th DCA 2001); Yashus v. State, 745 So. 2d 504 (Fla. 2d DCA 1999). This case is on all fours with McFadden. Although the trial court initially designated Appellant a habitual offender in case numbers 94-3961, 99-1763 and 99-3201, the trial co…
Authorities Cited
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)