Coleman 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 ALBERT STEVEN COLEMAN, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Case No. 2D05-637 Opinion filed May 10, 2006. Appeal from the Circuit Court for Hillsborough County; Debra Behnke, Judge. James Marion Moorman, Public Defender, and Richard P. Albertine, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee. THREADGILL, EDWARD F., Senior Judge. Albert Steven Coleman challenges his judgments and sentences for one count of delivery of cocaine, two counts of possession of cocaine, and one count of possession of drug paraphernalia. We affirm his convictions. However, we reverse his habitual felony offender sentences on the two counts of possession of cocaine. Section 775.084(1)(a)(3), Florida Statutes (2003), precludes sentencing a defendant as a habitual felony offender for violating section 893.13 relating to purchase or possession of a controlled substance. See Virgil v. State, 884 So. 2d 373, 373-74 (Fla. 2d DCA 2004). Mr. Coleman apprised the trial court of the sentencing error in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days; therefore, the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(1)(B) and (b)(2)(B); O Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003). Affirmed in part; reversed in part, and remanded for resentencing on the two possession of cocaine counts. SALCINES and LaROSE, JJ., Concur. -2-

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