Stubbs v. State

676 So. 2d 532, 1996 Fla. App. LEXIS 7620, 1996 WL 397277

Opinion

PER CURIAM.

In this direct criminal appeal, the public defender has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The defendant pled nolo contendere to several charges and was sentenced as a habitual felony offender on counts I (battery on a law enforcement officer), II (possession of cocaine) and IV (resisting arrest with violence), to run concurrently; and to time served on count III (possession of drug paraphernalia). We affirm the defendant’s judgment in all respects, and remand solely for correction of the sentence imposed as to count II.

The state concedes, and we agree, the trial court erred in habitualizing the defendant on the possession of cocaine count. Reeves v. State, 659 So.2d 1259 (Fla. 4th DCA 1995); § 775.084(l)(a)3, Fla. Stat. (1993). While this error may be harmless in light of the other sentences imposed, we remand for correction of defendant’s sentence as to count II, to avoid potential future adverse consequences as a result of this erroneous habitual offender sentence.

AFFIRMED in part; REVERSED in part; and REMANDED.

DELL, POLEN and SHAHOOD, JJ., concur.