Miller v. State

696 So. 2d 913, 1997 WL 362998

Opinion

696 So.2d 913 (1997)

Frank James MILLER, Appellant,
v.
STATE of Florida, Appellee.

No. 95-03957.

District Court of Appeal of Florida, Second District.

July 2, 1997.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Appellant challenges his convictions and sentences for delivery and possession of cocaine. We affirm appellant's convictions without discussion. However, the trial court sentenced appellant as a habitual felony offender for both offenses.Under section 775.084(1)(a)3, Florida Statutes (1993), purchase and possession of controlled substances are felonies that are not subject to habitual offender sentencing. See Belton v. State, 673 So.2d 880 (Fla. 2d DCA 1996). As indicated by the sentencing guidelines score sheet, appellant's sentences were within the guidelines. Accordingly, we remand with directions to remove the habitual felony offender designation on the sentence for possession of cocaine. See Tisdale v. State, 696 So.2d 819 (Fla. 2d DCA 1997). We affirm appellant's sentences in all other respects.

Affirmed in part, reversed in part, and remanded with directions.

LAZZARA, A.C.J., and FULMER and WHATLEY, JJ., concur.