RICKY ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's sentence for probation violation was illegal because he was not originally sentenced as a habitual felony offender, and the court reversed and remanded for resentencing.
A probation violator cannot be sentenced as a habitual felony offender when the original sentence was not imposed under that designation.
[1] A probation violator cannot receive a habitual felony offender sentence when the original underlying sentence was not imposed under that designation.
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Join FLexlaw to unlock all legal intelligenceAnderson pled guilty to possession of a firearm by a convicted felon and received three years probation. He was found to be a habitual felony offender…
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PER CURIAM.
Ricky Anderson appeals the trial court’s order summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800, Florida Rules of Criminal Procedure.
Simply stated, appellant alleged in his rule 3.800(a) motion that he pled guilty to possession of a firearm by a convicted felon and was placed on three years of probation. He was found to be a habitual felony offender, but was not sentenced based on that designation. Later, when appellant’s probation was revoked, he received a habitual felony offender sentence of two years in prison. He alleged that his sentence for violation of probation was illegal because his original sentence was not a habitual felony offender sentence. The trial court denied relief, but without prejudice to appellant’s right to challenge his original plea pursuant to Florida Rule of Criminal Procedure. 3.850.
We reverse and remand for resentencing consistent with this court’s recent pronouncement in McFadden v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000). See also Yashus v. State, 745 So. 2d 504 (Fla. 2d DCA 1999). In doing so, however, we certify conflict with the third district in Rodriguez v. State, 766 So. 2d 1147 (Fla. 3d DCA 2000), and the fifth district in Terry v. State, 778 So. 2d 435 (Fla. 5th DCA 2001), rev. granted, No. SC01-383, 790 So. 2d 1108 (Fla. Jun.11, 2001).
STONE, STEVENSON and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harry Bank v. State, 802 So. 2d 384 (Fla. 3d DCA 2001)…ation of probation and sentences imposed thereon. Rodriguez v. State, 766 So. 2d 1147 (Fla. 3d DCA 2000); Terry v. State, 778 So. 2d 435 (Fla. 5th DCA), review granted, 790 So. 2d 1108 (Fla.2001). However, we certify conflict with Anderson v. State, 792 So. 2d 679 (Fla. 4th DCA 2001); McFadden v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000), and Yashus v. State, 745 So. 2d 504 (Fla. 2d DCA 1999). Affirmed.…
Authorities Cited
- McFADDEN v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000)
- Alvarez Alberto Rodriguez v. State, 766 So. 2d 1147 (Fla. 3d DCA 2000)
- Yashus v. State, 745 So. 2d 504 (Fla. 2d DCA 1999)
- Terry v. State, 778 So. 2d 435 (Fla. 5th DCA 2001)