District Court of Appeal of Florida, Fifth DistrictFeb 25, 2000
751 So. 2d 196 (Fla. Dist. Ct. App. 2000)

No. 5D99-2034.

Opinion filed February 25, 2000.

Appeal from the Circuit Court for Brevard County, Warren Burk, Judge.

James B. Gibson, Public Defender, and S.C. Van Voorhees, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Lori E. Nelson, Assistant Attorney General, Daytona Beach, for Appellee.

Having been convicted after a jury trial of sale of cocaine in Count I and possession of cocaine in Count II, the trial court sentenced Appellant as an habitual offender on both counts, despite Appellant's objection to the habitualization as to Count II. Section 775.084(1)(a)(3), Florida Statutes (1997) specifies that an habitual offender sentence is not to be imposed to a charge of possession of a controlled substance. The sentence as to Count II of Case No. 98-14033 is reversed and the cause is remanded with instructions to sentence Appellant under the guidelines on that count.


GRIFFIN and THOMPSON, JJ., concur.