Nathan v. State, 96-05180

• Decision Date: 28 February 1997
• Docket Number: No. 96-05180,96-05180
• Citation: 689 So.2d 1150
• Parties: 22 Fla. L. Weekly D545 Antonio NATHAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1150

689 So.2d 1150

22 Fla. L. Weekly D545

Antonio NATHAN, Appellant, v.STATE of Florida, Appellee.

No. 96-05180.

District Court of Appeal of Florida Second District.

Feb. 28, 1997.

PARKER, Acting Chief Judge.

Antonio Nathan appeals the trial court's order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).Nathan alleged in his motion that his sentence of forty years as a habitual felony offender for burglary of a dwelling with assault or battery with a firearm is illegal.The state concedes that Nathan is entitled to relief.We reverse.

In 1991 a jury convicted Nathan of burglary of dwelling with assault or battery with a deadly weapon, a firearm, and two other felonies.¹In his rule 3.800 motion, Nathan attacks only the habitual offender sentence for the burglary charge.Nathan correctly points out that the punishment for that felony is provided by section 810.02(2)(a) and (b), Florida Statutes(1991), ² and is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment.Nathan argues that because the jury convicted him of burglary of a dwelling with assault or battery while armed with a firearm, his sentence should have been enhanced to a life felony under section 775.087(1)(a), Florida Statutes(1991), ³ and, as a life felony, the trial court could not sentence him under the habitual offender statute.

The trial court denied Nathan's motion finding that (1) the offense was, in fact, scored as a first-degree felony punishable by life and (2) if it were improper and should have been scored as a life felony, the matter should have been raised on direct appeal or raised pursuant to Florida Rule of Criminal Procedure 3.850 which is now time barred and successive.That finding was error.A motion to correct an illegal sentence can be raised at any time.Fla. R.Crim. P. 3.800(a).Furthermore, a habitual offender sentence is illegal for purposes of a motion to correct an illegal sentence if the terms or conditions of the sentence exceed those authorized by the habitual offender statute.Judge v. State, 596 So.2d 73(Fla. 2d DCA1991), review denied, 613 So.2d 5(Fla.1992).

In Grant v. State, 677 So.2d 45(Fla. 3d DCA1996), the defendant was charged with and convicted of a 1993 burglary with an assault or battery while using a weapon.The judgment listed the crime as a first-degree felony, and the trial court found the defendant to be a habitual violent felony offender.In reversing the sentence, the Third District Court stated:

Defendant correctly argues that the judgment is in error in classifying the crime as a first degree felony.Here the state elected to charge defendant with burglary with an assault or battery.See§ 810.02(2)(a), Fla. Stat.(1993).That offense is a first degree felony punishable by life imprisonment.Id.The effect of the weapon enhancement statute, § 775.087(1), Fla. Stat., is to enhance the offense from a first degree felony to a life felony.Id.§ 775.087(1)(a).Consequently, the judgment should have reflected that the burglary offense in this case is a life felony.Seeid.;Lamont v. State, 610 So.2d 435, 438-39(Fla.1992);Lareau v. State, 573 So.2d 813, 814-15(Fla.1991);Lafleur v. State, 661 So.2d 346, 349(Fla. 3d DCA1995).

It follows ... that defendant's adjudication as a habitual violent felony offender on this count must be reversed ... Under the version of the habitual offender statute in existence at that time, the statute did not provide an enhanced habitual offender penalty for a defendant who committed a life felony.Lamont v. State, 610 So.2d at 438;Lafleur v. State, 661 So.2d at 349.

Grant, 677 So.2d at 46(footnote omitted).

The state concedes that Nathan is entitled to relief based upon the reasoning set forth in Lamont ⁴ and Lareau.Accordingly, we reverse the order denying Nathan's rule 3.800 motion and remand for resentencing on the crime of burglary of a dwelling with assault or battery with a deadly weapon.⁵

PATTERSON and WHATLEY, JJ., concur.

1The other two felonies were aggravated assault with a deadly weapon, a firearm, and grand theft motor vehicle.At sentencing, Nathan also was sentenced on one other felony and two misdemeanors.

2Section 810.02, Burglary, provides:

(1)"Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082,s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person.

(b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon.

3Section 775.087, Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence, provides, in relevant part:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be...