Cunningham v. State, 93-2232

• Decision Date: 25 January 1995
• Docket Number: No. 93-2232,93-2232
• Citation: 648 So.2d 328
• Parties: 20 Fla. L. Weekly D256 Walter CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 328

648 So.2d 328

20 Fla. L. Weekly D256

Walter CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.

No. 93-2232.

District Court of Appeal of Florida,

Fourth District.

Jan. 25, 1995.

Appeal from the Circuit Court for Palm Beach County; James R. Stewart, Jr., Judge.

Louise A.D. Jones, Louise A.D. Jones, P.A., West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We reverse, in part, a final order on Appellant's motion for post-conviction relief. There is no record support for Appellant's sentence as a habitual violent offender. It is undisputed that Appellant, sentenced pursuant to a plea, did not agree to be sentenced as a habitual violent offender. Therefore, the sentence imposing a minimum mandatory term is in error. On remand, the trial court need not conduct a resentencing, but need only strike the minimum mandatory portion of Appellant's sentence and resentence Appellant as a habitual offender. There is support in the record for Appellant's sentence as a habitual offender. See Chaison v. State, 608 So.2d 560 (Fla. 1st DCA 1992), rev. denied, 617 So.2d 318 (Fla.1993).

In all other respects, the final order of the trial court is affirmed both as to the judgment and sentence.

STONE, POLEN and KLEIN, JJ., concur.