Palmer v. State

743 So. 2d 80, 1999 Fla. App. LEXIS 11838, 1999 WL 683131

Opinion

PER CURIAM.

In this direct criminal appeal, appellant seeks review of a ten-year habitual offender sentence imposed for possession of more than 20 grams of marijuana. Section 775.084(l)(a)3, Florida Statutes (1997), expressly precludes an habitual offender sentence for a felony which is a violation of section 893.13 “relating to the purchase or the possession of a controlled substance.” Possession of more than 20 grams of marijuana is such an offense. §§ 893.13(l)(a)2 & 893.03(l)(c)7, Fla. Stat. (1997). Appellant did not object to the sentence in the trial court. However, we have held that such a sentence constitutes fundamental error, which may be raised for the first time on appeal. Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998) (general division en banc). Accordingly, we vacate the sentence and remand to the trial court for resentencing. As we did in Nelson, we certify conflict with Maddox v. State, 708 So.2d 617 (Fla. 5th DCA) (en banc), review granted, 718 So.2d 169 (Fla.1998).

SENTENCE VACATED - and REMANDED.

BARFIELD, C.J., WEBSTER and BENTON, JJ„ CONCUR.