Ingraham v. State

882 So. 2d 1104, 2004 Fla. App. LEXIS 13884, 2004 WL 2101959

Opinion

PER CURIAM.

The defendant appeals an order summarily denying his motion to correct an illegal sentence,- pursuant to Florida Rule Criminal Procedure 3.800(a). In this appeal, he alleges he does not qualify for habitual felony offender sentencing because his release from the last predicate felony conviction occurred more than five years prior to the commission of the instant offenses. - If he lacks the predicate conviction necessary to satisfy section 775.084(1)(a)2, Florida Statutes (1997), then his habitual sentences would be illegal. See Bover v. State, 797 So.2d 1246, (Fla.2001). Unfortunately, while he raises the issue in this appeal, he did not raise it in the motion before the trial court. We therefore affirm the summary denial without prejudice to the defendant to refile a motion in the trial court to address this allegation.

SHAHOOD, HAZOURI and MAY, JJ„ concur.