ROSALIND VIRGIL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rosalind Virgil appealed the denial of her motion to correct illegal sentences. The court affirmed the trial court's summary denial of one claim but remanded three sentences for resentencing because the trial court illegally imposed habitual felony offender sentences on drug possession and trafficking offenses in violation of Florida statutes.
Three of Virgil's sentences are illegal and subject to correction. Florida Statutes prohibit habitual felony offender sentences for possession of controlled substances and require sentencing guidelines for trafficking involving 28-200 grams of cocaine. The court affirmed the trial court's denial of one claim regarding case number 95-3049 due to insufficient record.
[1] A defendant cannot be sentenced as a habitual offender for violating a statute relating to the purchase or possession of a controlled substance, including the offense of…
[2] If a defendant is improperly sentenced as a habitual offender, the trial court must permit the State either to agree to resentencing or to withdraw from the plea agreemen…
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Join FLexlaw to unlock all legal intelligence“Pursuant to section 775.084(l)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual felony offender for violating section 893.13 relating to the purchase or the possession of a controlled substance.”
Establishes the statutory prohibition that makes Virgil's possession sentence illegal
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Join FLexlaw to unlock all legal intelligenceVirgil pleaded guilty to possession of cocaine with intent to sell or deliver and trafficking in cocaine offenses across multiple circuit court cases.…
The full statement of facts, procedural history, and disposition for this case are member content.
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VILLANTI, Judge.
Rosalind Virgil appeals the summary denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial of the claim raised by Virgil as being without merit. However, we remand for correction three of Virgil’s sentences because it is apparent from the face of the record before this court that the sentences are illegal. See Higgins v. State, 799 So. 2d 344 (Fla. 2d DCA 2001).
In circuit court case number 95-15938, Virgil pleaded guilty to possession of cocaine with intent to sell or deliver in violation of section 893.13(l)(a), Florida Statutes (1995).
The trial court sentenced her as a habitual felony offender to fifteen years in prison.
Pursuant to section 775.084(l)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual felony offender for violating section 893.13 relating to the purchase or the possession of a controlled substance. See, e.g., Roberts v. State, 753 So. 2d 136 (Fla. 2d DCA 2000); Woods v. State, 807 So. 2d 727 (Fla. 1st DCA 2002).
This includes the offense of possession of cocaine with intent to sell or deliver. See Roberts, 753 So. 2d at 137-38; Ishmael v. State, 735 So. 2d 509 (Fla. 2d DCA 1999).
Because the habitual felony offender statute prohibited a habitual felony offender sentence for possession of cocaine, Virgil’s sentence is illegal and subject to correction under rule 8.800(a).
See Carter v. State, 786 So. 2d 1173, 1180 (Fla.2001) (holding that a habitual offender sentence is illegal where the habitual 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 in effect at the time of the offense. See Gadsen v. State, 849 So. 2d 358 (Fla. 2d DCA 2003).
It is not apparent from the limited record before this court whether Virgil was sentenced as a habitual felony offender on another count of possession of cocaine with intent to sell or deliver in circuit court case number 95-3049. Therefore, we affirm without prejudice to any right Virgil may have to raise this claim relating to her habitual felony offender sentence in case number 95-3049.
In addition, in circuit court case numbers 95-4623 and 96-06981, Virgil was sentenced as a habitual felony offender to trafficking in cocaine, 28 grams or more but less than 200 grams. These sentences are illegal because section 893.135(l)(b)(l)(a) of the Florida Statutes provides that if the quantity of the cocaine involved is 28 grams or more but less than 200 grams, the defendant shall be sentenced pursuant to the sentencing guidelines.1 See Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999).
Therefore, Virgil could not have been sentenced as a habitual felony offender on these two trafficking offenses. See Fortner v. State, 779 So. 2d 462 (Fla. 2d DCA 2000); Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000). This court ordered the State to respond, and the State conceded that the sentences in these two cases are illegal.
Accordingly, we remand for the trial court to resentence Virgil on the trafficking offenses in case numbers 95-4623 and 96-06981 pursuant to the sentencing guidelines in effect at the time of the offense in each case.
If, in the above three cases, Virgil entered negotiated pleas to habitual sentences, the trial court must permit the State either to agree to resentencing or to withdraw from the plea agreement and proceed to trial. See Hughes v. State, 850 So. 2d 664 (Fla. 1st DCA 2003).
Affirmed but remanded to the trial court for correction of sentences.
ALTENBERND, C.J., and WALLACE, J., Concur. . Both the 1993 version of the statute, applicable to circuit court case number 95-4623, and the 1995 version of the statute, applicable to circuit court case number 96-06981, require a defendant to be sentenced pursuant to the guidelines.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baker v. State, 941 So. 2d 419 (Fla. 2d DCA 2006)…statute, a habitual offender sentence could not be imposed for the crime of trafficking. See Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999). This court followed Wright in Harper v. State, 889 So. 2d 899 (Fla. 2d DCA 2004), and Virgil v. State, 884 So. 2d 373 (Fla. 2d DCA 2004). The holding in Wright, however, only applied to section 893.135 as amended by chapter 93-406, section 24, Laws of Florida. From January 1, 1994, until September 30, 2000, the drug-trafficking statute required the trial court to i…
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Coleman v. State, 927 So. 2d 1048 (Fla. 2d DCA 2006)…ossession of cocaine. Section 775.084(l)(a)(3), Florida Statutes (2003), precludes sentencing a defendant as a habitual felony offender for violating section 893.13 relating to purchase or possession of a controlled substance. See Virgil v. State, 884 So. 2d 373, 373-74 (Fla. 2d DCA 2004). Mr. Coleman apprised the trial court of the sentencing error in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days; therefore, the motio…
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Chantz Harper v. State, 889 So. 2d 899 (Fla. 2d DCA 2004)…fine. Section 893.135(l)(b)(l)(a) provides that if the quantity of cocaine involved in the trafficking offense is 28 grams or more but less than 200 grams, the defendant shall be sentenced pursuant to the sentencing guidelines. See Virgil v. State, 884 So. 2d 373, 29 Fla. L. Weekly D2060 (Fla. 2d DCA Sept.10, 2004); Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999). Therefore, Harper should not have been sentenced as a habitual felony offender in case number 95-15645. See Fortner v. State, 779 So. 2d 462 (…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Carter v. State, 786 So. 2d 1173 (Fla. 2001)
- Elmario Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000)
- Wautara Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999)
- Lexington Ins. Co. v. Ramdas and Chitra Bhandari, 807 So. 2d 727 (Fla. 3d DCA 2002)
- Ishmael v. State, 735 So. 2d 509 (Fla. 2d DCA 1999)
- Roberts v. State, 753 So. 2d 136 (Fla. 2d DCA 2000)
- Blending Hughes v. State, 850 So. 2d 664 (Fla. 1st DCA 2003)
- Fortner v. State, 779 So. 2d 462 (Fla. 2d DCA 2000)
- Woods v. State, 807 So. 2d 727 (Fla. 1st DCA 2002)
- Ferro v. State, 782 So. 2d 948 (Fla. 5th DCA 2001)