JOSEPH A. FERRO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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GRIFFIN, J.
Joseph A. Ferro appeals the trial court’s order summarily denying his amended Rule 3.800(a) motion, which raises four grounds. One of those four grounds has merit.
Ferro contends that the trial court erred in imposing a habitual offender sentence on his conviction for count four, possession of cocaine. The state concedes that if this type of error is cognizable under Rule 3.800(a), the habitualized sentence was improper. See, e.g., Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995)(habitual felony offender statute does not permit habitualization of offense relating to purchase or possession of a controlled substance). The alleged error is cognizable under Rule 3.800(a). See Summers v. State, 747 So. 2d 987 (Fla. 5th DCA 1999). The .trial court denied this claim as successive but it appears this precise claim was not previously raised. We vacate the sentence on this count and remand for a non-habitualized sentence. In light of our disposition, the fíne is proper. See § 775.083(l)(c), Fla.Stat. (1999). We find no merit to the remaining claims.
AFFIRMED in part; REVERSED in part.
THOMPSON, C.J, and SAWAYA, J., concur.
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Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004)…is not barred by the law of the case. See State v. McBride, 848 So. 2d 287, 289-90 (Fla.2003) (observing that questions of - law actually decided on appeal constitute the law of the case through all subsequent proceedings); see also Ferro v. State, 782 So. 2d 948 (Fla. 5th DCA 2001) (holding that rule 3.800(a) motion should not have been denied as successive where precise issue argued had not been previously raised). “ ‘[Wjhen the judge has been involved in the plea negotiation and then later imposes a harsh…
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Rosalind Virgil v. State, 884 So. 2d 373 (Fla. 2d DCA 2004)…al offender statute in effect at the time of the offense prohibited the imposition of a habitual offender sentence); Ishmael, 735 So. 2d at 510 (holding that such a sentence is illegal and may be corrected pursuant to rule 3.800(a)); Ferro v. State, 782 So. 2d 948 (Fla. 5th DCA 2001) (same). This court ordered the State to respond, and the State conceded that the sentence in this case is illegal. Therefore, we remand for the trial court to resentence Virgil in case number 95-15938 pursuant to the guidelines i…
Authorities Cited
- Timothy v. Summers, 747 So. 2d 987 (Fla. 5th DCA 1999)
- Marchell D. Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995)