Martin v. State

608 So. 2d 571, 1992 WL 338530

Opinion

608 So.2d 571 (1992)

Freddie James MARTIN, Appellant/Cross-Appellee,
v.
STATE of Florida, Appellee/Cross-Appellant.

No. 91-2335.

District Court of Appeal of Florida, Fifth District.

November 20, 1992.

James B. Gibson, Public Defender and Noel A. Pelella, Asst. Public Defender, Daytona Beach, for appellant/cross-appellee.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.

PER CURIAM.

Freddie James Martin was convicted by a jury of attempted possession of a firearm by a convicted felon. The trial court adjudicated Martin guilty, classified him as a habitual violent felony offender, and sentenced him to a term of 10 years in the Department of Corrections with 6 years suspended to be served on probation. Although we find no merit in Martin's contention that the trial court erred by denying his motion to dismiss, we do agree with the State that once the court decided to sentence Martin as a habitual violent felony offender, it was error to fail to impose the minimum mandatory sentence of 5 years required by section 775.084(4)(b)3, Florida Statutes (1991). See Lowe v. State, 605 So.2d 505 (Fla. 5th DCA 1992).

Conviction AFFIRMED; Sentence REVERSED and REMANDED for resentencing.

GOSHORN, C.J., and W. SHARP and GRIFFIN, JJ., concur.