ALBERTO VIERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alberto Viera appealed his sentence for drug offenses, challenging the legality of his habitual offender enhancement and the guidelines used. The court affirmed the habitual offender sentence for sale of cocaine but reversed and remanded for resentencing on the possession charge because the trial court improperly applied 1995 sentencing guidelines that were unconstitutional during the relevant time period.
The habitual offender sentence for the sale of cocaine charge is proper because sentencing guidelines do not apply to habitual offender sentences. The possession charge cannot be enhanced under the habitual felony offender statute. Viera must be resentenced under the 1994 guidelines because his offenses occurred during the period when the 1995 guidelines were declared unconstitutional, and the 42.6-month sentence falls outside the 1994 recommended guideline range.
[1] Sentencing guidelines are inapplicable to habitual offender sentences.
[2] A conviction for possession of cocaine cannot be enhanced pursuant to Section 775.084, Fla. …
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Join FLexlaw to unlock all legal intelligence“appellant is entitled to no relief inasmuch as the sentencing guidelines are inapplicable to habitual offender sentences”
Establishes that sentencing guidelines do not apply to habitual offender sentences, so the enhancement on count 1 is proper
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Join FLexlaw to unlock all legal intelligenceViera pleaded guilty on May 7, 1997 to sale, manufacture or delivery of cocaine and possession of cocaine. He was sentenced to ten years imprisonment …
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PER CURIAM.
Appellant was charged with, and on May 7, 1997 pled guilty to, sale, manufacture or delivery of cocaine (count 1) and possession of cocaine (count 2). He was then sentenced to ten years imprisonment as a habitual felony offender on both counts. Appellant filed a motion to correct sentence with the trial court, wherein he challenged the legality of his habitual offender sentence on the following three grounds:
1. The habitual offender sentence imposed for count 1, sale of cocaine is an improper departure sentence without written reason.
2. The sentence imposed on count 2 is illegal because a conviction for possession of cocaine cannot be enhanced pursuant to Section 775.084, Fla. Stat. (1995).
3.Appellant must be resentenced using a 1994 sentencing scoresheet because the offenses fall within the applicable window period during which the 1995 guidelines were held unconstitutional.
The trial court granted relief only on issue two by resentencing appellant on count 2 to 42.6 months imprisonment and deleting the habitual offender classification. Appellant took the instant appeal.
As to issue one, the state asserts and we agree that appellant is entitled to no relief inasmuch as the sentencing guidelines are inapplicable to habitual offender sentences. See § 775.084(4)(e) (1995); Nelson v. State, 632 So. 2d 206 (Fla. 1st DCA 1994). For that reason, appellant’s sentence for count 1 is not improper. As to issue three, the State, however, properly concedes that appellant is entitled to relief in the form of resentencing when the trial court resentenced appellant on count 2 to 42.6 months, it improperly utilized a 1995 guidelines scoresheet. The appellant’s offenses were committed on September 6, 1996, and fell within the window period during which the 1995 guidelines were declared unconstitutional. See Heggs v. State, 759 So. 2d 620 (Fla.2000); Trapp v. State, 760 So. 2d 924 (Fla.2000). Accordingly, he is entitled to be resentenced under the 1994 guidelines. Since the 42.6 months imprisonment sentence falls outside the 1994 recommended guideline range, the appellant is entitled to be resentenced. See Toomajan v. State, 785 So. 2d 1275 (Fla. 5th DCA 2001); Willis v. State, 785 So. 2d 698 (Fla. 1st DCA 2001). Reversed and remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tannehill v. State, 843 So. 2d 355 (Fla. 3d DCA 2003)…raised in a rule 3.850 motion). Additionally, we find that Appellant’s second and third claims, that his habitual offender sentence is an unlawful departure sentence that cannot be imposed without written reasons, are meritless. See Viera v. State, 833 So. 2d 264 (Fla. 3d DCA 2002) (confirming that habitual offender sentences are not subject to sentencing guidelines and thus are not departure sentences that must be accompanied by written reasons). We also advise Appellant that additional, repetitive, non-m…
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Curry v. State, 913 So. 2d 736 (Fla. 3d DCA 2005)…PER CURIAM. Affirmed. See Burgal v. State, 888 So. 2d 702 (Fla. 3d DCA 2004); Viera v. State, 833 So. 2d 264 (Fla. 3d DCA 2002).…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Toomajan v. State, 785 So. 2d 1275 (Fla. 5th DCA 2001)
- Nelson v. State, 632 So. 2d 206 (Fla. 1st DCA 1994)
- Brown v. State, 785 So. 2d 698 (Fla. 1st DCA 2001)
- Willis v. State, 785 So. 2d 698 (Fla. 1st DCA 2001)