Ishmael v. State, 98-04339.
| Decision Date | 21 April 1999 |
| Docket Number | No. 98-04339.,98-04339. |
| Parties | Charles ISHMAEL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Charles Ishmael seeks review of an order that summarily denied his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm in part, reverse in part, and remand with directions. We reverse because the trial court failed to refute Ishmael's claim that he was illegally sentenced as a habitual felony offender for possession of cocaine; in all other respects, we affirm the trial court's order denying relief.
Ishmael received two thirty-year habitual felony offender sentences, one for possession of cocaine with intent to sell or deliver and the other for sale of cocaine. On direct appeal from his judgments and sentences, the State conceded Ishmael's sentence on count one was illegal as an offense not subject to habitualization, but this court affirmed the trial court because the sentencing error was not preserved for review. See Ishmael v. State, 711 So.2d 539 (Fla. 2d DCA 1998) ().
Ishmael argues in his motion that his habitual felony offender sentences on both counts are illegal, rearguing the issue raised on direct appeal as it applies to count one, and asserting that he did not qualify as a habitual felony offender on count two because both prior convictions used to habitualize him were violations of section 893.13, Florida Statutes (1995) for purchase or possession. He indicates that the offenses were committed after June 17, 1993, the effective date of an amendment to section 775.084, Florida Statutes (1993), which proscribes habitual felony offender sentencing for offenses relating to purchase or possession of a controlled substance. This amendment forbids the use of more than one purchase or possession conviction as the predicate offenses necessary for habitualization. The trial court denied relief without any explanation of its denial or attachment of any record to its order.
Claims of this nature may be considered pursuant to rule 3.800(a). See Young v. State, 716 So.2d 280 (Fla. 2d DCA 1998)
(). If Ishmael's representations are true, he would...
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