District Court of Appeal of Florida, Fifth District.
Eddie B. Bryant, Perry, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.
W. SHARP, J.
Bryant appeals from an order of the trial court which granted in part, and denied in part, his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Bryant challenges the legality of his habitual offender sentence and fine. Because the habitual offender sentence is improper on the face of the record, we reverse. See State v. Mancino, 714 So. 2d 429 (Fla.1998); Summers v. State, 747 So. 2d 987 (Fla. 5th DCA 1999); Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999).
Bryant was charged in case number 98-567 with trafficking in cocaine in an amount between 28 and 200 grams. Bryant pled nolo contendere and was sentenced to 20 years in prison as an habitual offender. The information alleged the offense was committed on January 22, 1998.
Pursuant to section 893.135(1)(b)1.a., Florida Statutes (1997), if the cocaine is 28 grams or more but less than 200 grams, "such person shall be sentenced pursuant to the sentencing guidelines and pay a fine of $50,000.00." This language places the lesser trafficking offenses under the guidelines and removes them from sentencing under the habitual offender statute. See Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000).
REVERSED and REMANDED for resentencing.
DAUKSCH and GRIFFIN, JJ., concur.
