JAMES PENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Penn appeals the summary denial of his Rule 3.850 motion for postconviction relief, claiming his counsel was ineffective for failing to object to a habitual felony offender sentence imposed on a drug possession charge. The court reversed, finding that possession with intent to sell cannot be sentenced as a habitual felony offender and that Penn received an illegal sentence due to counsel's deficiency.
The court held that Penn raised a facially sufficient ineffective assistance claim because counsel was deficient in failing to object to an illegal sentence. A defendant cannot be sentenced as a habitual felony offender for possession of a controlled substance with the intent to sell under Florida law.
[1] A defendant cannot be sentenced as a habitual felony offender for the offense of possession of a controlled substance with the intent to sell.
[2] A claim of ineffective assistance of counsel is facially sufficient when counsel fails to object to an illegal sentence, and the defendant receives that illegal sentence…
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Join FLexlaw to unlock all legal intelligence“a defendant cannot be sentenced as a habitual felony offender for possession of a controlled substance with the intent to sell”
Establishes the legal principle that makes the sentence illegal and forms the basis for finding counsel was deficient
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Join FLexlaw to unlock all legal intelligencePenn was found guilty of sale of cocaine and possession of cocaine with intent to sell. On December 5, 2002, he was sentenced to concurrent terms of 1…
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PER CURIAM.
This is an appeal from the trial court’s summary denial of the appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erred by denying the appellant’s claim that counsel was ineffective for failing to object to the imposition of a habitual felony offender sentence on the charge of possession of a controlled substance with the intent to sell, we reverse. We affirm all other issues without further discussion.
The appellant was found guilty of sale of cocaine and possession of cocaine with the intent to sell.
On December 5, 2002, the appellant was sentenced to concurrent terms of 15 years’ imprisonment as a habitual felony offender to be suspended after 5 years’ imprisonment and the remaining portion to be served on probation. By way of a timely rule 3.850 motion, the appellant alleged that counsel was ineffective for failing to object to the imposition of a habitual felony offender sentence on the charge of possession of a controlled substance with the intent to sell.
The trial court denied the claim as without merit.
However, a defendant cannot be sentenced as a habitual felony offender for possession of a controlled substance with the intent to sell. § 893.13(l)(a)3., Florida Statutes (2001); Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999).
Thus, the appellant raised a facially sufficient claim that counsel was deficient because there was a legitimate basis for objecting to the sentence imposed by the trial court and the appellant received an illegal sentence as a result of this deficiency. Because the trial court failed to attach any portion of the record to conclusively refute this claim, we reverse and remand for further attachment of record portions or an evidentiary hearing. AFFIRMED in part, REVERSED in part, and REMANDED.
KAHN, HAWKES, and THOMAS, JJ., concur.
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Montrell L. Johnson v. State, 149 So. 3d 727 (Fla. 5th DCA 2014)…llegal. Trial counsel’s failure to object to an illegal sentence constitutes ineffective assistance of counsel. Hernandez v. State, 30 So. 3d 610, 612-13 (Fla. 3d DCA 2010) (citing Rudolph v. State, 968 So. 2d 633 (Fla. 2d DCA 2007); Penn v. State, 941 So. 2d 466 (Fla. 1st DCA 2006)). “Aggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime.” Jacobs v. State, 954 So. 2d 1268,1269 (Fla. 2d DCA 2007) (…
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Elmore v. State, 172 So. 3d 465 (Fla. 1st DCA 2015)…tablished that the failure to object to an illegal sentence constitutes ineffective assistance of counsel. See, e.g., Hernandez v. State, 30 So. 3d 610, 613 (Fla. 3d DCA 2010); Rudolph v. State, 968 So. 2d 633, 633 (Fla. 2d DCA 2007); Penn v. State, 941 So. 2d 466, 466 (Fla. 1st DCA 2006). However, recognizing ineffective assistance of counsel on the face of the record in these circumstances would eviscerate the holding in Jackson, which requires preservation even of fundamental errors. Contrary to the disse…
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Hernandez v. State, 30 So. 3d 610 (Fla. 3d DCA 2010)…rformance prejudiced the defense. A trial counsel’s failure to object to an illegal sentence meets the Strickland standard for an ineffective assistance of counsel claim. See, e.g., Rudolph v. State, 968 So. 2d 638 (Fla. 2d DCA 2007); Penn v. State, 941 So. 2d 466 (Fla. 1st DCA 2006). The record in this case clearly shows that Hernandez’ defense counsel failed to object to the reclassification, which resulted in an illegal sentence. Defense counsel’s failure to object to this illegal sentence constituted ine…
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- Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999)