05-1760 MESA V. STATE

State: Florida

Court: Florida Southern District Court

Docket No: 3d05-1760

Case Date: 11/16/2005

Plaintiff: 05-1760 MESA

Defendant: STATE

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

JUAN MESA, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** CASE NO. 3D05-1760 LOWER TRIBUNAL NOS.02-36580 04-263 04-3361

**

Opinion filed November 16, 2005. An Appeal under Fla. R. App. P. 9.141(b) (2) from Circuit Court for Miami-Dade County, Jorge J. Perez, Judge. Juan Mesa, in proper person. Charles J. Crist, Jr., Attorney General, Robin F. Hazel, Assistant Attorney General, for appellee. Before GERSTEN, GREEN, and RAMIREZ, JJ. PER CURIAM. Juan Mesa ("Mesa"), appeals the denial of his 3.850 motion for post conviction relief. one of which has merit. Mesa raises several issues, only the

Mesa contends the trial court erred in

sentencing him to seven years in prison with a five-year minimum mandatory term, as both a habitual felony offender and a

habitual violent offender.

Based on the Florida Supreme Court's

decision in Clines v. State, 30 Fla. L. Weekly S657 (Fla. July 7, 2005), we agree and reverse for further proceedings. In concluded multiple Clines, that the Court applied is the rule of lenity and

"section

775.084

ambiguous be applied

about to a

whether single

recidivist

categories

may

criminal sentence." Clines, 30 Fla. L. Weekly at 7.

The Court

further held "that the recidivist categories are designed to be hierarchical, not complementary . . . and only one recidivist category in section 775.084 may be applied to any criminal

sentence."

Clines, 30 Fla. L. Weekly at 7.

Accordingly, we reverse the trial court's order denying the motion for post conviction relief and remand to the trial court to either allow the State to remove one of the recidivist

designations, or withdraw from the plea agreement and proceed to trial. Reversed and remanded for further proceedings.

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