Burns v. State

Full title: JAMES BURNS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fourth District

Date published: Nov 6, 1996

682 So. 2d 675 (Fla. Dist. Ct. App. 1996)

Opinion

No. 96-0226.

November 6, 1996.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Cynthia G. Angelos, Judge; L.T. Case No. 95-1788-CF.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant's conviction for the sale of a substance in lieu of a controlled substance.

The record shows that the trial court sentenced appellant as a habitual offender without having obtained or considered a presentence investigation report as required by section 775.084(3)(a), Florida Statutes (1995). Appellant did not waive his right to have the trial court consider such a report.

Accordingly, we reverse appellant's sentence as a habitual offender. See Bardwell v. State, 617 So.2d 431 (Fla. 4th DCA 1993). We remand this cause for resentencing with leave to the trial court to reconsider appellant's sentence as a habitual offender in accord with the requirements of section 775.084, Florida Statutes (1995).

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

GLICKSTEIN and DELL, JJ., and OFTEDAL, RICHARD L., Associate Judge, concur.