Opinion
Case No. 4D03-3019.
Opinion filed December 1, 2004.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Burton C. Conner, Judge, L.T. Case No. 02-1308 CFA.
Carey Haughwout, Public Defender, West Palm Beach, and Alisa Smith, Special Assistant Public Defender, Clermont, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Bruce Lee Williams, raises three issues on appeal with regard to his convictions, from severed trials, for second degree murder and possession of a firearm by a convicted felon. We affirm his convictions without prejudice as to any 3.850 motion.
With regard to Williams' sentence for possession of a firearm by a convicted felon, the trial court erred by sentencing him as a habitual felony offender based upon his prior convictions, which are not subject to habitualization pursuant to section 775.084, Florida Statutes (2003). Although Williams did not bring any sentencing error to the attention of the trial court by way of a 3.800 motion to correct sentence, because Williams' previous convictions both relate to possession of a controlled substance, a patent fundamental sentencing error occurred. See Roberts v. State, 753 So. 2d 136, 137 (Fla. 2d DCA 2000) (holding similar habitualization error is serious and patent on face of record and may therefore be reviewed for first time on direct appeal). We reverse this sentence and remand the matter for resentencing. Upon resentencing, the trial court may consider a habitual offender sentence if Williams has other prior felonies that would qualify him for habitualization. See Gordon v. Moore, 832 So. 2d 880, 881 (Fla. 3d DCA 2002).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
GUNTHER and STONE, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.