THOMAS TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court properly revoked probation for cocaine possession but erred in imposing a habitual felony offender sentence because cocaine possession does not qualify as a predicate offense under Florida law.
A habitual felony offender sentence cannot be imposed for a violation of Florida Statute section 893.13 (cocaine possession), and the trial court's oral pronouncement failed to include the HFO designation.
[1] A violation of Florida Statute section 893.13 (cocaine possession) cannot serve as the basis for imposing a habitual felony offender sentence under section 775.084(i)(a)3…
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Join FLexlaw to unlock all legal intelligenceTurner entered a no contest plea to cocaine possession and received three years probation. He was charged with three probation violations, and the tri…
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After entering a no contest plea to possession of cocaine, Thomas Turner was sentenced to three years probation. In this violation of probation proceeding, the trial court found Turner guilty of each of three charged violations of that probation and sentenced him, as a habitual felony offender (HFO), to five years incarceration. Turner insists that the evidence was insufficient to establish any of the violations and that the trial court erred in imposing an HFO sentence. We reject, without further comment, Turner’s sufficiency of the evidence claim. As the State concedes, however, there is merit in the argument regarding the HFO sentence. Not only did the court’s oral pronouncement of sentence fail to include an HFO designation, but the offense for which sentence was imposed was possession of cocaine, in violation of section 893.13, Florida Statutes (2003). A violation of section 893.13 cannot provide the basis for the imposition of an HFO sentence. See § 775.084(i)(a)3., Fla. Stat. (2003). We thus affirm the revocation of probation, but remand the matter, directing the trial court to correct the sentencing order by removing the HFO designation.
Affirmed in part; reversed in part; and remanded.
STEVENSON, MAY and LEVINE, JJ., concur.