O'Neal v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TYRONE O'NEAL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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Case No. 2D01-3948
Opinion filed January 31, 2003.
Appeal from the Circuit Court
for Pinellas County;
Richard A. Luce, Judge.
James Marion Moorman, Public
Defender, and Megan Olson,
Assistant Public Defender, Bartow,
for Appellant.
Charlie Crist, Attorney General,
Tallahassee, and Ronald Napolitano,
Assistant Attorney General, Tampa,
for Appellee.
KELLY, Judge.
Tyrone O’Neal appeals from the habitual offender sentences imposed
upon him for sale of cocaine and possession of cocaine. He argues that the trial court
failed to orally announce that he was being sentenced as a habitual offender. We affirm
O’Neal’s habitual offender sentence for sale of cocaine because it is obvious from the
trial court’s oral pronouncement of sentence that the court intended to sentence O’Neal
as a habitual offender. The court discussed O’Neal’s prior record and found that he met
the qualifications to be sentenced as a habitual offender. As the Fifth District stated in
Yates v. State, 823 So. 2d 273, 274 (Fla. 5th DCA 2002), a sentencing judge is not
required “to use the magic words, ‘habitual felony offender sentence,’ in order to
effectuate a legal sentence where it is obvious the trial court intended to and did impose
an habitual felony offender sentence.”
However, as O’Neal argues and the State concedes, O’Neal’s written
judgment erroneously reflects a habitual offender sentence for possession of cocaine.
See Tyler v. State, 826 So. 2d 1103 (Fla. 2d DCA 2002). Consequently, we remand to
the trial court to strike from the written sentencing order the habitual offender sanction
for possession of cocaine. O’Neal’s presence is not required for this ministerial
function.
Affirmed in part; reversed in part and remanded.
CASANUEVA and SALCINES, JJ., Concur.
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