ERIC L. WADE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of motion to correct illegal sentence where trial court imposed habitual felony offender designation on possession with intent to distribute conviction, which is not a qualifying offense for habitualization.
Habitual felony offender designation cannot be imposed for possession with intent to distribute, and the trial court must either provide conclusive record evidence that the defendant was not habitualized for this conviction or delete the designation.
[1] Habitual felony offender designation is not authorized for conviction of possession with intent to distribute.
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Court citing Gregory v. State regarding possession with intent to distribute convictions.
Wade was sentenced as a habitual felony offender for a conviction of possession with intent to distribute pursuant to a plea agreement.…
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PER CURIAM.
The appellant challenges the trial court’s summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant claims that he was sentenced as a habitual felony offender for a conviction of possession with intent to distribute. Habitualization is not authorized for this offense. See Gregory v. State, 739 So. 2d 100, 100 (Fla. 2d DCA 1999).
The trial court attached a portion of the sentencing transcript in an effort to support its contention that the appellant was not sentenced as a habitual felony, offender for this conviction.
However, the trial court’s attachment is inconclusive. We therefore reverse the trial court’s summary denial and remand with instructions to either attach record excerpts which conclusively establish that the appellant was not habitualized for possession with intent to distribute (such as the original sentencing documents), or to delete the habitual offender designation as to this conviction. Although the appellant’s sentence was the result of a plea agreement, the state is not entitled to withdraw from this arrangement in the event that the trial court resentences the appellant, because there is no indication that the plea agreement was predicated upon the appellant’s habituali-zation.
Thus, removing the habitual of fender status from the appellant’s possession with intent to distribute conviction would merely return the parties to their originally bargained for positions. See O’Neal v. State, 667 So. 2d 418, 413 (Fla. 4th DCA 1996).
REVERSED AND REMANDED.
BROWNING, LEWIS and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blending Hughes v. State, 850 So. 2d 664 (Fla. 1st DCA 2003)…predicated upon habitualization, the trial court must permit the state to either (i) allow appellant to be resenteneed without imposition of habitual offender status, or (ii) withdraw from the plea agreement and proceed to trial. See Wade v. State, 822 So. 2d 550 (Fla. 1st DCA 2002); Lee v. State, 642 So. 2d 1190 (Fla. 1st DCA 1994). REVERSED and REMANDED with directions. KAHN, WEBSTER and POLSTON, JJ., concur.…
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Dywayne Tony Wilson v. State, 857 So. 2d 964 (Fla. 1st DCA 2003)…esult of a negotiated plea. Should appellant prevail on remand, the state will be entitled to withdraw from the plea agreement if the agreement was negotiated, and one of its terms was that appellant would be sentenced as an HVFO. See Wade v. State, 822 So. 2d 550, 551 (Fla. 1st DCA 2002). REVERSED and REMANDED, with directions. KAHN, WEBSTER and VAN NORTWICK, JJ„ CONCUR.…
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Hank D. Harper v. State, 869 So. 2d 715 (Fla. 1st DCA 2004)…resentence him accordingly. To the extent that the appellant’s habitual offender sentence was the result of a negotiated plea, the state will be entitled to withdraw from the plea agreement should the appellant prevail on remand. See Wade v. State, 822 So. 2d 550, 551 (Fla. 1st DCA 2002). REVERSED AND REMANDED with instructions. WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.…
Authorities Cited
- Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999)
- Gipson v. State, 667 So. 2d 418 (Fla. 5th DCA 1996)