5D09-3188 Bernard Dougherty v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-3188

Case Date: 03/22/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

BERNARD DOUGHERTY, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed March 26, 2010 3.800 Appeal from the Circuit Court for Brevard County, Robert T. Burger, Judge. Bernard Dougherty, Sneads, pro se. Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J. Bernard Dougherty appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. discussion. Dougherty was charged with three offenses: resisting an officer with violence in violation of section 843.01, Florida Statutes (1999); acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge in violation of section 893.13(7)(a)(9), Florida Statutes (1999); and criminal use of personal identification Dougherty raises three claims, only one of which merits Case No. 5D09-3188

information in violation of section 817.568(2), Florida Statutes (1999).

At trial, the

criminal use of personal identification information charge was nolle prossed. Dougherty was convicted of the remaining two charges and sentenced on both counts as a habitual felony offender. The issue for our determination is whether acquiring a

controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge is a qualifying offense under the habitual felony offender statute. We conclude it is not, and reverse for resentencing on that count. Section 775.084, Florida Statutes (1999), sets forth the criteria for habitual felony offender sentencing. Relevant to this case, a defendant is not eligible for habitual felony offender sentencing if the "felony for which the defendant is to be sentenced, and one of the two prior felony convictions," is a violation of section 893.13, which relates to the purchase or possession of a controlled substance.

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