Opinion
No. 92-2326.
December 30, 1993.
Appeal from the Circuit Court for Orange County; Alice Blackwell White, Judge.
James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellee.
Irvin C. Rogers appeals only his sentence as a habitual violent offender for first degree murder. We direct our attention to this one issue and only to this one issue. The state concedes error in the sentencing. We affirm the judgment, but correct the sentence imposed by the trial court.
Rogers was tried and convicted for first degree murder, a violation of section 782.04, Florida Statutes (1991). This felony is a capital felony. The maximum sentence that can be imposed is life imprisonment with a mandatory minimum requirement that the appellant serve no less than 25 years before becoming eligible for parole. See § 775.082, Fla. Stat. (1991). The trial judge sentenced Rogers to life imprisonment with the minimum mandatory term of 25 years, with credit for 362 days time served. The court went further and determined that Rogers was a habitual violent felony offender. See § 784.03, Fla. Stat. (1991). This finding is contrary to this court's rulings that the habitual violent felony offender statute does not apply to capital or life felonies. See Burdick v. State, 594 So.2d 267 (Fla. 1992); Mishoe v. State, 601 So.2d 1284 (Fla. 5th DCA 1992); Power v. State, 568 So.2d 511, 512 (Fla. 5th DCA 1990). The judgment is affirmed, but the sentence is corrected to delete the designation of habitual violent felony offender.
AFFIRMED, as modified.
HARRIS, C.J., and GRIFFIN, J., concur.