02-1341 VIERA V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 02-1341 VIERA V. STATE

Case Date: 12/26/2002

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

ALBERTO VIERA, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** CASE NO. 3D02-1341 LOWER TRIBUNAL NO. 96-28249 **

Opinion filed December 26, 2002. An appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Alberto Viera, for appellant. Richard E. Doran, Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellee.

Before LEVY, GERSTEN, and GREEN, JJ.

PER CURIAM.

Appellant was charged with, and on May 7, 1997 pled guilty

to, sale, manufacture or delivery of cocaine (count 1) and possession of cocaine (count 2). He was then sentenced to ten

years imprisonment as a habitual felony offender on both counts. Appellant filed a motion to correct sentence with the trial court, wherein he challenged the legality his habitual offender sentence on the following three grounds: 1. The habitual offender sentence imposed for count 1, sale of cocaine is an improper departure sentence without written reason. 2. The sentence imposed on count 2 is illegal because a conviction for possession of cocaine cannot be enhanced pursuant to Section 775.084, Fla. Stat. (1995). 3. Appellant must be resentenced using a 1994 sentencing scoresheet because the offenses fall within the applicable window period during which the 1995 guidelines were held unconstitutional. The trial court granted relief only on issue two by

resentencing appellant on count 2 to 42.6 months imprisonment and deleting the habitual offender classification. took the instant appeal. As to issue one, the state asserts and we agree that Appellant

appellant is entitled to no relief inasmuch as the sentencing guidelines are inapplicable to habitual offender sentences. See

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