Summary
reversing habitual felony offender sentence for possession of cocaine
Summary of this case from Roberts v. StateOpinion
No. 99-01111
Opinion filed April 21, 1999.
Appeal pursuant to Fla. R. App. P. 9.140(i) from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.
Eldred E. Salters appeals an order which denied a motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Of the seven issues raised, we conclude that only one has merit.
Salters was sentenced on count two, possession of cocaine, to a habitual felony offender sentence. Section 775.084(1)(a)3., Florida Statutes (1995), precludes habitual felony offender sentencing where the underlying felony is a violation of section 893.13, relating to the purchase or possession of a controlled substance. Because possession of cocaine is a violation of section 893.13, Florida Statutes (1995), the imposition of a habitual felony offender sentence resulted in an illegal sentence. See § 775.084(1)(a)3., Fla. Stat. (1995). Salters is entitled to have an illegal sentence corrected at any time. See Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1992) (en banc). Accordingly, we reverse the habitual felony offender sentence on the charge of possession of cocaine and remand this case to the trial court for imposition of a guidelines sentence.
Affirmed in part; reversed in part and remanded for resentencing.
PARKER, C.J., and PATTERSON and SALCINES, JJ., Concur.