Nunez 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 JOHN YANCY NUNEZ, Appellant, v. STATE OF FLORIDA, Appellee. ) ) ) ) ) ) ) ) ) ) Case No. 2D04-1127 Opinion filed October 26, 2005. Appeal from the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge. James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. In this appeal from convictions for trafficking in amphetamine, trafficking in illegal drugs, and possession of a controlled substance, appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting the possibility of legal error in the trial court's denial of Nunez's motion for a judgment of acquittal. We have carefully reviewed the record and find no error in the issue suggested by counsel. However, we do detect error in the sentence imposed. Although Nunez's sentence was a lawful sentence imposed within the Criminal Punishment Code, the written sentencing order reflects that the trial court designated Nunez's sentences for trafficking in amphetamine and trafficking in illegal drugs as habitual felony offender sentences. The State never sought habitual felony offender sentences for these offenses, the trial court did not include the designations in its oral pronouncement, and the designations appear to be scrivener's errors. The State correctly concedes that Nunez's written judgment erroneously reflects habitual felony offender sentences for the two trafficking offenses. However, Nunez did not preserve this issue for appellate review by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So. 2d 452 (Fla. 2003). Therefore, we may not address this sentencing error on direct appeal. Accordingly, we affirm Nunez's judgments and sentences without prejudice to any right Nunez may have to file an appropriate postconviction motion addressing the erroneous designations. Affirmed. STRINGER and CANADY, JJ., Concur. -2-
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