Anderson v. State, 93-196
| Decision Date | 03 June 1994 |
| Docket Number | No. 93-196,93-196 |
| Citation | 637 So.2d 971 |
| Parties | 19 Fla. L. Weekly D1214 John Henry ANDERSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Susan A. Fagan, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellee.
John Henry Anderson was arrested and charged with possession and delivery of cocaine resulting from a sale to a confidential informant. The police officers with whom the informant was working did not observe her actually make the purchase because she went into a rooming house to do so and, although the informant was wired at the time of the buy, the officers could not identify the voice they heard as Anderson's.
The informant testified that Anderson was the individual who sold her the cocaine and although Anderson, his brother and two friends testified that Anderson was elsewhere playing cards when the purchase occurred, the jury found him guilty on both counts. The court determined that Anderson was an habitual felony offender and sentenced him to thirty years' incarceration on one count and ten years' incarceration on the second count to run consecutive.
As a result of a previous robbery conviction, Anderson was on probation at the time of his arrest for the cocaine charges. And although the State, prior to the original sentence on the robbery conviction, had filed a notice of intent to seek habitualization and had served a copy on Anderson's attorney, at the original sentencing the State recommended that Anderson receive a guidelines sentence without habitualization. Anderson was sentenced to four and one-half years' incarceration to be followed by two years' probation. When Anderson was convicted of the cocaine charge, however, the State filed a second notice of intent to seek habitual felony offender status for the new sentencing on the prior robbery charge due to the violation of probation. 1 The trial judge found that Anderson had violated his probation, revoked it, and sentenced him to thirty years' incarceration as an habitual felony offender. The sentence was to run concurrent with the sentence on the cocaine conviction.
Anderson filed a timely notice of appeal of his cocaine convictions and his sentences. We find no merit to Anderson's various challenges relating to his convictions for possession and delivery of cocaine. However, we reverse his sentences and remand.
In Hale v. State, 630 So.2d 521 (Fla.1993), the supreme court held:
We conclude that, under the statutory penalty for each offense, the trial court may sentence this defendant separately for the possession [of cocaine], and sentence him separately for the sale [of cocaine], and make each sentence consecutive to the other. However, the trial court is not authorized, in our view, to both enhance [the defendant's] sentence as a habitual offender and make each of the enhanced habitual offender sentences for the possession and the sale of the same identical piece of cocaine consecutive, without specific legislative authorization in the habitual...
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Woolf v. Woolf, 4D04-3403.
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