CHRIS FOSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Chris Foster appeals his sentencing, challenging the trial court's designation of him as a habitual felony offender for the crime of attempted purchase of marijuana over twenty grams while armed. The appellate court agrees that the habitual offender designation was improper under Florida law and reverses the sentencing on that charge for resentencing.
The trial court erred in imposing the habitual offender designation for the marijuana purchase conviction because Florida Statutes section 775.084(l)(a)3 prohibits habitualization for violations of section 893.13, which relates to purchase or possession of controlled substances.
[1] A defendant cannot be classified as a habitual felony offender for a conviction related to the purchase or possession of a controlled substance under Florida Statutes sec…
[2] The filing of a superseding information that omits a charge previously alleged in an earlier information results in the dropped charge being vitiated.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because section 775.084(l)(a)3., Florida Statutes, prohibits habitualization for violations of section 893.13, Florida Statutes, relating to the purchase or possession of a controlled substance, the State properly concedes error.”
Establishes the core legal principle that habitual offender designation is statutorily prohibited for drug possession and purchase offenses.
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Join FLexlaw to unlock all legal intelligenceFoster pleaded nolo contendere to five charges: attempted trafficking in cocaine with a firearm, attempted purchase of marijuana over twenty grams whi…
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Chris Foster appeals his sentence, arguing that the trial court erred in sentencing him as 'a habitual felony offender on his conviction for attempted purchase of over twenty grams of marijuana while armed. We agree, and thus, reverse and remand for resentencing.
Foster pleaded nolo contendere to: (1) attempted trafficking in cocaine with a firearm; (2) attempted purchase of marijuana over twenty grams while armed; (3) possession of a firearm by a convicted felon; (4) resisting law enforcement without violence; and (5) possession of a firearm with an altered or removed serial number.1 The State sought to classify Foster as a habitual felony offender.
On the attempted trafficking in cocaine with a firearm conviction, the trial court sentenced Foster to fifteen years in the Department of Corrections, with a ten-year minimum mandatory. The court also sentenced him — as a habitual offender — to ten years on the attempted purchase of marijuana while armed conviction.2 Finally, the trial court sentenced him to ten *950years on the possession of a firearm by a convicted felon conviction. All sentences were to run concurrently.3
On appeal, the only issue is whether the trial court improperly imposed a habitual offender designation for Foster’s conviction of attempted purchase of marijuana over twenty grams while armed. Because section 775.084(l)(a)3., Florida Statutes, prohibits habitualization for violations of section 893.13, Florida Statutes, relating to the purchase or possession of a controlled substance, the State properly concedes error. See Ellis v. State, 703 So.2d 1186, 1186 (Fla. 3d DCA 1997).
Accordingly, we reverse and remand for resentencing on the attempted purchase of over twenty grams of marijuana while armed charge.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
PALMER and EDWARDS, JJ., concur.
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Citator
Cited By
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United States v. Conage, 976 F.3d 1244 (11th Cir. 2020)…not require the exchange of money or that there be any transaction at all. 29 Case: 17-13975 Date Filed: 09/30/2020 Page: 30 of 41 Some Florida cases do involve a conviction for the attempted purchase of illegal drugs. See, e.g., Foster v. State, 160 So. 3d 948, 950 (Fla. 5th DCA 2015); Cardi v. State, 685 So. 2d 842, 843 (Fla. 2d DCA 1995). But those cases do not discuss the elements of attempted purchase, which discussion might provide some enlightenment as to the elements of a completed purchase offense…
Authorities Cited
- State v. Anderson, 537 So. 2d 1373 (Fla. 1989)
- Ellis v. State, 703 So. 2d 1186 (Fla. 3d DCA 1997)