JESSIE J. MCGRAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of motion to correct illegal sentence regarding a fine imposed under section 893.135(1)(b)(1) where defendant was sentenced as a habitual felony offender, holding that the HFO statute does not authorize such fines.
A fine imposed pursuant to section 893.135(1)(b)(1) constitutes an illegal sentence when imposed on a defendant sentenced as a habitual felony offender because the HFO statute does not specifically authorize fine imposition.
[1] A fine imposed under section 893.135(1)(b)(1) constitutes an illegal sentence when imposed on a habitual felony offender because the HFO statute does not specifically aut…
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Join FLexlaw to unlock all legal intelligenceJessie McGraw was sentenced as a habitual felony offender and received a fine pursuant to section 893.135(1)(b)(1), Florida Statutes (1989). He filed …
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WHATLEY, Judge.
Jessie McGraw appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without comment as to all but one of McGraw’s claims. We reverse as to McGraw’s claim that the fine imposed pursuant to section 893.135(1)(b)(1), Florida Statutes (1989), was illegal.
McGraw claims that because he was sentenced as a habitual felony offender (HFO) and the HFO statute does not make an allowance for the imposition of a fine, the fine that was imposed as part of his sentence pursuant to section 893.135(1)(b)(1) was illegal. The postconviction court denied this claim as one that was not cognizable in a rule 3.800(a) motion. However, it would appear the postconviction court failed to consider this court’s holding in Floyd v. State, 739 So. 2d 1241 (Fla. 2d DCA 1999) (holding that because the HFO statute did not specifically allow for the imposition of the fine required by chapter 893, that fine constituted an illegal sentence). Accordingly, we reverse the sum mary denial of McGraw’s claim and remand for the trial court to consider McGraw’s claim that the fine imposed pursuant to section 893.135(1)(b)(1) is illegal in light of this court’s holding in Floyd. We note that should the postconviction court conclude the imposed fine does constitute an illegal sentence, McGraw’s presence is not required to strike the fine from his sentence. See id.
Reversed and remanded.
CASANUEVA and STRINGER, JJ., Concur.
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Citator
Cited By
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Baker v. State, 941 So. 2d 419 (Fla. 2d DCA 2006)…JJ„ Concur. . In another appeal of an order denying relief under rule 3.800(a), this court reversed and remanded for further consideration of whether a mandatory fine imposed under section 893.135 violated the holding in Floyd. See McGrow v. State, 922 So. 2d 243 (Fla. 2d DCA 2006). Upon further consideration, it appears that the order in McGrow could have been affirmed. Because we did not hold the fine illegal, but merely determined that the issue required further consideration in the trial court, we conclu…
Authorities Cited
- Floyd v. State, 739 So. 2d 1241 (Fla. 2d DCA 1999)