Robinson v. State

612 So. 2d 677, 1993 Fla. App. LEXIS 408, 1993 WL 8997

• Court: District Court of Appeal of Florida
• Decided: January 21, 1993
• Docket: No. 92-1434
• Status: Published

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

Appellee, the State of Florida, has moved for rehearing of our opinion herein dated November 18, 1992, in which we affirmed the imposition of an habitual violent felony offender sentence pursuant to section 775.-084(l)(a), Florida Statutes, but certified the same questions certified in Tillman v. State, 586 So.2d 1269 (Fla. 1st DCA 1992). The motion is granted. The opinion herein dated November 18, 1992, is hereby withdrawn, and the following opinion substituted therefor.

Johnnie Robinson has appealed from sentencing as an habitual violent felony offender, following his conviction of robbery with a deadly weapon. We affirm.

Robinson argues that his habitual violent felony offender classification is illegal, in that it violates the constitutional prohibition against double jeopardy. The state responds first that Robinson waived this issue by failing to raise it in the trial court. On the merits, it argues that the issue has recently been decided adversely to Robinson. Tillman v. State, 586 So.2d 1269 (Fla. 1st DCA), approved 609 So.2d 1295 (Fla.1992).

The state’s waiver argument is without merit, in that an illegal sentence can be raised at any time. See also White v. State, 539 So.2d 1160 (Fla. 1st DCA 1989) (challenge to facial validity of sentencing statute may be raised for the first time on appeal, citing Trushin v. State, 425 So.2d 1126, 1129 (Fla.1982)). However, the state correctly points out that Robinson’s double jeopardy argument has been rejected in Tillman. We therefore affirm.

JOANOS, C.J., and WIGGINTON and KAHN, JJ., concur.