Summary
holding that where an improperly imposed habitual sentence was within the guidelines, the court on remand need only remove the habitual offender designation and need not resentence defendant
Summary of this case from Aysisayh v. StateOpinion
Case No. 95-03957
Opinion filed July 2, 1997.
Appeal from the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge.
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.
Appellant challenges his convictions and sentences for delivery and possession of cocaine. We affirm appellant's convictions without discussion. However, the trial court sentenced appellant as a habitual felony offender for both offenses. Under section 775.084(1)(a)3, Florida Statutes (1993), purchase and possession of controlled substances are felonies that are not subject to habitual offender sentencing. See Belton v. State, 673 So.2d 880 (Fla. 2d DCA 1996). As indicated by the sentencing guidelines score sheet, appellant's sentences were within the guidelines. Accordingly, we remand with directions to remove the habitual felony offender designation on the sentence for possession of cocaine. See Tisdale v. State, 22 Fla. L. Weekly D688 (Fla. 2d DCA March 12, 1997). We affirm appellant's sentences in all other respects.
Affirmed in part, reversed in part, and remanded with directions.
LAZZARA, A.C.J., and FULMER and WHATLEY, JJ., Concur.