Summary
addressing how section 775.084 applies to an HFO sentence
Summary of this case from Ponton v. StateOpinion
No. 5D07-4363.
March 20, 2008.
3.800 Appeal from the Circuit Court for Citrus County, Patricia Thomas, Judge.
James L. Bunch, Monticello, pro se.
Bill McCollum, Attorney General, Tallahassee, and Brigid E. Colllins, Assistant Attorney General, Daytona Beach, for Appellee.
James Bunch appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. Mr. Bunch was sentenced as a habitual felony offender on two counts of sale of cocaine. He contends that his habitual offender sentences are illegal because the lower court relied upon prior predicate convictions that were not sequential. See § 775.084(5), Fla. Stat. (2000); Bover v. State, 797 So.2d 1246, 1248-49 (Fla. 2001).
Mr. Bunch was also sentenced on two counts of possession of cocaine and possession of cocaine with intent to deliver.
The sentencing transcript reflects that both prior convictions used for habitualization occurred on September 8, 1998. At the sentencing, although the assistant state attorney referred to other prior convictions, none were actually admitted into evidence.
The record does not reflect that the September 8, 1998 convictions occurred at separate sentencing proceedings.
Because Mr. Bunch did not raise this issue or object at the original sentencing hearing, on remand, the State will have the opportunity to present record evidence that would satisfy the sequential sentencing requirements of section 775.084(5). See Bover, 797 So.2d at 1248-49.
REVERSED and REMANDED.
PLEUS, TORPY and COHEN, JJ., concur.