Barnes v. State

741 So. 2d 1180, 1999 Fla. App. LEXIS 12185, 1999 WL 743554

Opinion

PER CURIAM.

Barnes was convicted of burglary of a dwelling and violation of a domestic violence injunction. He asserts that there was insufficient evidence to support the burglary conviction and that the trial court erred in 'sentencing him as a habitual offender on the misdemeanor related to domestic violence. We affirm the burglary conviction, vacate the habitual offender sentence on the misdemeanor count, and remand for resentencing only on that count.

The state concedes that the trial court incorrectly sentenced Barnes as a habitual offender on the misdemeanor charge, but asserts the issue was not preserved for appeal. The sentencing error in this case constituted fundamental error which may be raised for the first time on appeal. See Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA1998).

WOLF, DAVIS and BROWNING, JJ., concur.