DAVID BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A habitual offender sentence is not permissible for possession of a controlled substance with intent to sell, and such a sentence is illegal and must be corrected.
Burgess pleaded no contest and was sentenced as a habitual offender for possession with intent to sell a controlled substance. He filed a motion to co…
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[*755] SALCINES, Judge.
David Burgess appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion stated a claim for correction of an illegal sentence as related to one count of possession with intent to sell a controlled substance and, in a second claim, challenged his convictions. We reverse the trial court’s denial as to the correction of illegal sentence and remand the cause for further proceedings. However, we affirm the trial court’s denial of relief as to the convictions as such a challenge is not proper under rule 3.800(a).
Pursuant to a plea of no contest, Burgess was sentenced as a habitual offender to twenty years’ Florida State Prison for one count of possession of cocaine with intent to sell and two counts of sale of cocaine. In his motion, Burgess pointed out that a habitual offender sentence is not allowed for possession of a controlled substance with intent to sell. § 775.084(l)(a)3, Fla. Stat. (1999); Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA1999). We agree.
As such, it is apparent from the face of the record that this portion of Burgess’ sentence is illegal. See Williams v. State, 500 So. 2d 501, 503 (Fla.1986) (holding that a court cannot impose an illegal sentence pursuant to a plea bargain, nor may a defendant agree to an illegal sentence as part of that bargain). Therefore, we reverse the order of the trial court as to the possession count and remand for the trial court to delete the habitual felony offender designation. We affirm the trial court’s denial of relief as to the convictions.
Affirmed in part; reversed in part; and remanded.
DAVIS and KELLY, JJ., Concur.
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Jones v. State, 988 So. 2d 15 (Fla. 2d DCA 2008)…der Florida Rule of Criminal Procedure 3.800(b)(2). First, Jones correctly argues that the habitual felony offender sentencing statute exempts drug offenses of possession with intent to sell. § 775.084(1)(a)(3), Fla. Stat. (2003); Burgess v. State, 854 So. 2d 754 (Fla. 2d DCA 2003); McCray v. State, 769 So. 2d 1123 (Fla. 2d DCA 2000). We therefore strike the habitual felony offender designation on the sentence for count four (possession of cannabis with intent to sell). Second, we agree with Jones’s argumen…
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Borrego v. State, 98 So. 3d 225 (Fla. 2d DCA 2012)…ined term cannot exceed the statutory maximum for the offense. Manning v. State, 961 So. 2d 1135, 1136 (Fla. 2d DCA 2007); Gonzales v. State, 816 So. 2d 720, 721 (Fla. 5th DCA 2002). A defendant cannot agree to an illegal sentence. Burgess v. State, 854 So. 2d 754, 755 (Fla. 2d DCA 2003); Morales v. State, 712 So. 2d 474, 474 (Fla. 2d DCA 1998). Here, the total sentence of sixteen years— ninety-six months (eight years) in prison followed by ninety-six months (eight years) [*226] of probation — exceeds the sta…
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Authorities Cited
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999)