Allen v. State

787 So. 2d 884, 2001 Fla. App. LEXIS 3993, 2001 WL 293153

Opinion

WHATLEY, Judge.

James Allen challenges the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He raised two grounds in his motion. We affirm the denial of the first ground without comment, but we reverse and remand for further proceedings on the second ground.

Allen was convicted of possession of cocaine with intent to sell while carrying a firearm, a first-degree felony. The written sentence reflects a sentence of forty years’ prison as a habitual offender followed by ten years’ probation. In his motion, Allen alleged that the written sentence does not conform to the oral pronouncement in that he was not orally sentenced as a habitual offender. A review of the sentencing transcript indicates that Allen’s assertion is correct.

We reverse that portion of the trial court’s order denying this claim and remand with instructions to the trial court to strike the habitual offender designation from Allen’s written sentence and to re-sentence Allen within the statutory maximum for the offense. See Simon v. State, 26 Fla. L. Weekly D409, — So.2d —, 2001 WL 98564 (Fla. 2d DCA Feb.7, 2001).

Affirmed in part, reversed, and remanded with instructions.

PARKER, A.C.J., and NORTHCUTT, J., concur.