Opinion
No. 92-958.
April 16, 1993.
Appeal from the Circuit Court for Orange County; James C. Hauser, Judge.
James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a judgment and sentence, appellant having been sentenced as a habitual violent felony offender. On appeal, he correctly argues that the trial court erred in sentencing him as a habitual violent felony offender because his predicate convictions did not establish him to be a habitual violent felony offender.
We affirm appellant's convictions. However, the two predicate felonies upon which appellant was sentenced as a habitual violent felony offender were convictions for delivery of cocaine and two counts of battery on a law enforcement officer. The State properly concedes that these two predicate felony offenses do not fall within the enumerated felonies required by section 775.084(1)(b), Florida Statutes. The appellant was given notice of the State's intent to seek habitual offender status and appellant's qualification as a nonviolent habitual offender pursuant to section 775.084(1)(a). Appellant's concurrent seventeen-year sentences fall within the statutory maximums provided by sections 775.084(4)(a)1, and 2, Florida Statutes. Therefore we remand to the trial court to allow it to remove the "violent" classification, leaving appellant classified as a habitual felony offender and to allow the trial court to remove the mandatory minimum sentences for habitual violent felony offenders prescribed by sections 775.084(4)(b)1 and 2, Florida Statutes.
AFFIRMED in part; REVERSED in part and REMANDED.
HARRIS and GRIFFIN, JJ., concur.