Starkes v. State

46 So. 3d 621, 2010 Fla. App. LEXIS 15538, 2010 WL 3984885

Opinion

PER CURIAM.

The appellant seeks review of the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). His motion alleges that the trial court erred in imposing a habitual felony offender sentence for the offense of possession of cocaine. Section 775.084(l)(a)(3), Florida Statutes, provides that the felony for which the defendant is being sentenced and one of the two predicate offenses cannot be a conviction relating to the purchase or the possession of a controlled substance. The postconviction court failed to attach any record attachments which refute the appellant’s claim that he was habitualized for a possession conviction.

Accordingly, we reverse the denial of the rule 3.800(a) motion and remand to either attach portions of the record refuting the appellant’s claim or strike the habitual felony offender designation.

REVERSED AND REMANDED.

WEBSTER, LEWIS, and MARSTILLER, JJ„ concur.