McCray v. State

District Court of Appeal of Florida

McCray v. State

573 So. 2d 1056, 1991 Fla. App. LEXIS 880, 1991 WL 13582

CourtDistrict Court of Appeal of Florida

DecidedFebruary 6, 1991

DocketNo. 90-00315

StatusPublished

Cited by1 cases

This text of 573 So. 2d 1056 (McCray v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McCray v. State, 573 So. 2d 1056, 1991 Fla. App. LEXIS 880, 1991 WL 13582 (Fla. Ct. App. 1991).

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Opinion

FRANK, Judge.

Douglas McCray has appealed from his sentence for sale, delivery, or possession with intent to sell or deliver cocaine. The trial court classified McCray as a habitual offender and sentenced him to ten years imprisonment. The habitual offender classification was erroneous, however, because both predicate offenses were committed on the same date and should have been treated as a single offense. Walker v. State, 567 So.2d 546 (Fla. 2d DCA 1990). The defendant’s failure to object in this instance is not fatal. Sentencing errors apparent on their face are cognizable on appeal absent objection. Forehand v. State, 537 So.2d 103 (Fla.1989).

We also note that the trial court imposed costs without affording the defendant notice and hearing. We vacate the cost order.

Reversed and remanded for resentencing and if the state seeks the imposition of costs, McCray is to be given notice and a hearing.

RYDER, A.C.J., and LEHAN, J., concur.

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FRANK, Judge.

Douglas McCray has appealed from his sentence for sale, delivery, or possession with intent to sell or deliver cocaine. The trial court classified McCray as a habitual offender and sentenced him to ten years imprisonment. The habitual offender classification was erroneous, however, because both predicate offenses were committed on the same date and should have been treated as a single offense. Walker v. State, 567 So.2d 546 (Fla. 2d DCA 1990). The defendant’s failure to object in this instance is not fatal. Sentencing errors apparent on their face are cognizable on appeal absent objection. Forehand v. State, 537 So.2d 103 (Fla.1989).

We also note that the trial court imposed costs without affording the defendant notice and hearing. We vacate the cost order.

Reversed and remanded for resentencing and if the state seeks the imposition of costs, McCray is to be given notice and a hearing.

RYDER, A.C.J., and LEHAN, J., concur.

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573 So. 2d 1056, 1991 Fla. App. LEXIS 880, 1991 WL 13582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccray-v-state-fladistctapp-1991.

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