Cunningham v. State

648 So. 2d 328, 1995 Fla. App. LEXIS 457, 1995 WL 25312

Opinion

PER CURIAM.

We reverse, in part, a final order on Appellant’s motion for post-conviction relief. There is no record support for Appellant’s sentence as a habitual violent offender. It is undisputed that Appellant, sentenced pursuant to a plea, did not agree to be sentenced as a habitual violent offender. Therefore, the sentence imposing a minimum mandatory term is in error. On remand, the trial court need not conduct a resentencing, but need only strike the minimum mandatory portion of Appellant’s sentence and resentence Appellant as a habitual offender. There is support in the record for Appellant’s sentence as a habitual offender. See Chaison v. State, 608 So.2d 560 (Fla. 1st DCA 1992), rev. denied, 617 So.2d 318 (Fla.1993).

In all other respects, the final order of the trial court is affirmed both as to the judgment and sentence.

STONE, POLEN and KLEIN, JJ., concur.