Gardener v. State

District Court of Appeal of Florida

Gardener v. State

685 So. 2d 1025, 1997 Fla. App. LEXIS 78, 1997 WL 5173

District Court of Appeal of Florida·Decided January 8, 1997·No. No. 96-2029·Published·Cited by 1 cases

Opinion

PER CURIAM.

Defendant appeals from the trial court’s denial of his motion to correct an unlawful sentence. Upon the State’s proper confession of eiTor, we reverse and remand for resentencing. A trial court may not impose a minimum mandatory sentence when sentencing a defendant as a habitual felony offender rather than a habitual violent felony offender. See Lamont v. State, 597 So.2d 823, 829 (Fla. 3d DCA), approved in pertinent part, 610 So.2d 435, 439 (Fla.1992).

Upon remand, the trial court may impose any lawful sentence originally available and give defendant the option to withdraw his plea and proceed to trial. See State v. Betancourt, 552 So.2d 1107 (Fla.1989).

Reversed and remanded with directions.

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PER CURIAM.

Defendant appeals from the trial court’s denial of his motion to correct an unlawful sentence. Upon the State’s proper confession of eiTor, we reverse and remand for resentencing. A trial court may not impose a minimum mandatory sentence when sentencing a defendant as a habitual felony offender rather than a habitual violent felony offender. See Lamont v. State, 597 So.2d 823, 829 (Fla. 3d DCA), approved in pertinent part, 610 So.2d 435, 439 (Fla.1992).

Upon remand, the trial court may impose any lawful sentence originally available and give defendant the option to withdraw his plea and proceed to trial. See State v. Betancourt, 552 So.2d 1107 (Fla.1989).

Reversed and remanded with directions.

Gardener v. State, 685 So. 2d 1025, 1997 Fla. App. LEXIS 78, 1997 WL 5173 (Fla. Ct. App. 1997).

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Opinion

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