Milner v. State

705 So. 2d 950, 1998 Fla. App. LEXIS 173, 1998 WL 5427

Opinion

PER CURIAM.

The appellant challenges the denial of his 3.800(a) motion, alleging his offense was committed during the window period when the habitual offender statute was unconstitutional, and therefore the enhancement rendered his sentence illegal by causing it to exceed the non-habitual statutory maximum for his offense. He failed to state whether he was actually affected by the unconstitutional amendments. See State v. Johnson, 616 So.2d 1 (Fla.1993). Nevertheless, the issue of whether appellant qualified for habitual felony offender classification and sentencing requires a factual determination and is therefore an inappropriate issue for consideration under Rule 3.800(a). See Davis v. State, 661 So.2d 1193 (Fla.1995); Pace v. State, 662 So.2d 1001 (Fla. 1st DCA 1995).

AFFIRMED.

KAHN, MICKLE and LAWRENCE, JJ., concur.