Pierre v. State

619 So. 2d 26, 1993 Fla. App. LEXIS 5745, 1993 WL 174887

• Court: District Court of Appeal of Florida
• Decided: May 26, 1993
• Docket: No. 92-2190
• Status: Published

Opinions

PER CURIAM.

Yvan Pierre was convicted of possession of cocaine with intent to deliver or sell. He appeals his conviction on the ground of prosecutorial misconduct and his sentence on the ground that the trial court erroneously believed that declaration of appellant as an habitual felony offender was mandatory. We affirm.

Appellant complains that the prosecutor’s closing argument was so prejudicial that it denied appellant a fair trial. No useful purpose would be served by going into detail as to each aspect of the closing argument with which appellant takes issue. This is a case in which it may fairly be said that the evidence of guilt is overwhelming. We therefore hold that any error in overruling appellant’s objections to the remarks of the prosecutor during closing argument was harmless, beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We turn, then, to the sentencing aspect of this appeal.

It is now established that declaration as an habitual felony offender or habitual violent felony offender, where the statutory criteria are met, is a mandatory obligation imposed on the trial court by statute. Sentencing, on the other hand, retains some permissive aspects. See Burdick v. State, 594 So.2d 267, 271 (Fla.1992); see also King v. State, 597 So.2d 309 (Fla. 2d DCA), rev. denied, 602 So.2d 942 (Fla.1992); Wright v. State, 599 So.2d 179 (Fla. 2d DCA1992). The trial court followed precedent here, and we therefore affirm this point on appeal.

AFFIRMED.

ANSTEAD and WARNER, JJ., concur. HERSEY, J., concurs specially with opinion.