EKOW TYLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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[*1104] BLUE, Chief Judge.
Ekow Tyler appeals his habitual offender sentences for possession of cocaine and delivery of cocaine. The State concedes that a habitual offender sentence is not permitted for possession of cocaine. See § 775.084(1)(a)(3), Fla. Stat. (Supp.1998); Washington v. State, 750 So. 2d 118 (Fla. 2d DCA 1999). We reverse this sentence and remand for imposition of a guidelines sentence.
As to the sentence for delivery of cocaine, the State also concedes error because the evidence was insufficient to prove that Tyler qualified for habitual offender treatment. The State failed to prove either that there were sequential convictions or that Tyler committed the new offense within five years of his release on the qualifying convictions. See Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996). Therefore, we reverse this sentence. Tyler preserved this issue for appeal by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). Because Tyler did not raise these objections at the time of sentencing, the State shall have the opportunity on remand to prove that Tyler qualifies for habitual offender sentencing on this conviction. See Reynolds, 674 So. 2d at 181.
Reversed and remanded for resentencing.
FULMER and CASANUEVA, JJ., Concur.
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O'Neal v. State, 862 So. 2d 91 (Fla. 2d DCA 2003)…ffender sentence was unnecessary for the protection of the public. O’Neal next argues, and the State correctly concedes, that O’Neal’s written judgment erroneously reflects a habitual offender sentence for possession of cocaine. See Tyler v. State, 826 So. 2d 1103 (Fla. 2d DCA 2002). Consequently, we remand to the trial court to strike from the written sentencing order the habitual offender sanction for possession of cocaine. O’Neal’s presence is not required for this ministerial function. Affirmed in part;…
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Edison v. State, 848 So. 2d 498 (Fla. 2d DCA 2003)…ablish that the qualifying convictions were sentenced separately, the State has not met its burden of proving that Edison qualified as an HFO. Accordingly, we reverse. On remand, the State may again seek HFO treatment, if applicable. Tyler v. State, 826 So. 2d 1103, 1104 (Fla. 2d DCA 2002); May v. State, 713 So. 2d 1087, 1088 (Fla. 2d DCA 1998). Reversed and remanded. NORTHCUTT and KELLY, JJ„ Concur.…
Authorities Cited
- Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996)
- Rooney v. Rooney, 750 So. 2d 118 (Fla. 2d DCA 1999)
- Washington v. State, 750 So. 2d 118 (Fla. 2d DCA 1999)