MARTIN V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 ** TIMOTHY MARTIN, ** Appellant, vs. ** CASE NO. 3D04-1375 ** THE STATE OF FLORIDA, ** LOWER TRIBUNAL NO. Appellee. 90-13651 ** Opinion filed October 6, 2004. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Scott M. Bernstein, Judge. Timothy Martin, in proper person. Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee. Before LEVY, FLETCHER, and RAMIREZ, JJ. PER CURIAM. Timothy Martin appeals the summary denial of his motion to correct illegal sentence pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure alleging that his sentence was based on an improperly calculated scoresheet. We previously held in Martin v. State, 795 So. 2d 143 (Fla. 3d DCA 2001), that under the version of the habitual offender statute then in effect, Martin could not be sentenced as a habitual offender in count five because the statute did not authorize habitualization for a life felony. court with We therefore remanded the case to the trial directions to strike the habitual offender adjudication from count five and resentence the defendant within the guidelines. Because Martin s guidelines maximum was twenty- two years and he had already agreed, in the plea bargain, to a twenty-seven year habitual offender sentence on counts one and two, we instructed that, on remand, Martin need not be present for the resentencing on count five. The record reflects that in the trial court, the State admitted that counts one and two should not have been scored as additional offenses and therefore recomputed his scoresheet to reflect a permitted range of nine to twenty-two years in State Prison. The State argued that Martin should be sentenced to twenty-two years in prison. The trial court denied Martin s motion as he is already sentenced to 22 years in State Prison as to count 5. is currently It is not clear from the record whether Martin serving a twenty-two or a twenty-seven year sentence, nor is it clear whether the State has satisfied the 2 sequential conviction requirement necessary for the imposition of a habitual offender sentence. We therefore reverse and remand for a new sentencing hearing at which point the State will have the opportunity to present that record would evidence satisfy habitualization. the that other sequential prior convictions conviction existed requirement for See Bover v. State, 797 So. 2d 1246, 1251 (Fla. 2001). 3
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