MARCHELL D. JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jackson appeals the revocation of probation and sentencing in two drug-related cases. The appellate court found that Jackson was improperly adjudicated as a habitual felony offender on a controlled substance possession charge in violation of Florida law, which prohibits habitualization for such offenses.
The improper habitual offender adjudication on Count II (possession of controlled substance) is stricken because Florida law prohibits habitualization for controlled substance possession charges. The habitual offender sentence on Count I is lawful but must be remanded for entry of a corrected habitualization order that accurately reflects the sentence imposed. The probation revocation and convictions are affirmed.
[1] A defendant cannot be habitualized as a felony offender for a conviction of unlawful possession of a controlled substance under section 775.084(1)(a)3, Florida Statutes (…
[2] A clerical error in a habitualization order that reflects a different sentence than the oral pronouncement and written sentencing forms may be grounds for remand.
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Join FLexlaw to unlock all legal intelligence“Section 775.084(l)(a)3, Florida Statutes (1993), does not permit habitualization where the felony for which the defendant is to be sentenced is a violation of section 893.13, relating to the purchase or possession of a controlled substance.”
Establishes the statutory prohibition on habitualization for controlled substance possession charges
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Join FLexlaw to unlock all legal intelligenceJackson was convicted of unlawful sale or delivery of a controlled substance (Count I) and unlawful possession of a controlled substance (Count II) in…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
In this Anders appeal,1 sentencing errors appear in the record. Jackson appeals the revocation of probation in Case No. 91-736 and the judgment and sentence imposed in Case No. 93-34234. In Case No. 93-34234, Jackson was convicted of unlawful sale or delivery of a controlled substance (Count I) and unlawful possession of a controlled substance (Count II). The written sentencing forms show that Jackson was adjudicated a habitual felony offender for both convictions. The sentencing forms further reflect, in accordance with the oral pronouncement, that Jackson was sentenced to 30 years imprisonment on Count I and 5 years imprisonment on Count II. The habitualization order, however, reflects a single sentence of 10 years imprisonment, possibly a clerical error.
Section 775.084(l)(a)3, Florida Statutes (1993), does not permit habitualization where the felony for which the defendant is to be sentenced is a violation of section 893.13, relating to the purchase or possession of a controlled substance. See Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994).
Thus, Jackson should not have been habitualized on Count II. The improper habitual offender adjudication on Count II of Case No. 93-34234 is therefore stricken.
The habitual offender sentence imposed on Count I of Case No. 93-34234, while lawful, must be remanded for entry of a corrected habitualization order, one which reflects accurately the sentence imposed upon the defendant. We affirm the order revoking probation in Case No. 91-736 and the convictions in Case No. 93-34234.2 AFFIRMED; REMANDED FOR ENTRY OF CORRECTED HABITUALIZATION ORDER. HARRIS, C.J., and DAUKSCH, J., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. In Case No. 91-736, Jackson was adjudicated guilty on July 25, 1991 of unlawful possession of a controlled substance and sentenced as a habit ual offender to 10 years incarceration, suspended after 119 days in county jail with the balance to be spent on probation. The habitual offender sentence for the unlawful possession conviction in Case No. 91-736 was imposed prior to the effective date of section 775.084(l)(a)3, Florida Statutes (1993). See Ch. 93-406 §§ 2, 44, Laws of Fla.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Watson Grene v. State, 702 So. 2d 510 (Fla. 3d DCA 1996)…itual offender sentencing was improper. See § 775.084(l)(a)(3); Williams v. State, 667 So. 2d 914 (Fla. 3d DCA 1996); Houser v. [*511] State, 666 So. 2d 158 (Fla. 5th DCA 1995); Palmer v. State, 664 So. 2d 1162 (Fla. 5th DCA 1995); Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995); Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994); cf. Tucker v. State, 608 So. 2d 122 (Fla. 2d DCA 1992), aff'd on other grounds, 620 So. 2d 1241 (Fla.1993). Accordingly, appellant’s sentence for possession of a controlled su…
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Houser v. State, 666 So. 2d 158 (Fla. 5th DCA 1995)…t it was error to adjudicate Houser as a habitual offender as to the possession offense, as that type of offense is excluded from consideration under the habitual offender statute. See § 775.084(l)(a)(3), Fla.Stat. (1993). See also Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995). Accordingly, we strike the habitual offender adjudication as to count two. We also conclude that it was error to impose a pubhc defender’s hen in the amount of $250 where Houser was not given prior notice of the lien or inform…
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Williams v. State, 667 So. 2d 914 (Fla. 3d DCA 1996)…ssion offenses. We do not agree. The Fifth District has applied section 775.084(l)(a), (3), Florida Statutes (1993) in this context to only purchase or possession offenses. See Houser v. State, 666 So. 2d 158 (Fla. 5th DCA 1995); Jackson v. State, 651 So. 2d 242 (Fla. 5th DCA 1995). In addition, Williams’ contention that there is no reason to treat the sale of cocaine differently than the purchase or possession of cocaine is eom-pletely without merit. Therefore we affirm Williams’ habitual felony offender s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994)