Opinion
No. 3D01-2853
Opinion filed January 30, 2002.
An Appeal under Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Dade County, Maria Espinosa Dennis, Judge. Lower Tribunal No. 98-25308.
Gonzalo Diaz, in proper person.
Robert A. Butterworth, Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.
As the state concedes, the defendant's sentence for possession of 200-400 grams of cocaine, contrary to section 893.135(1)(b)1.b., Florida Statutes (1997), improperly designates him a habitual felony offender. Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000); Rainey v. State, 741 So.2d 1207 (Fla. 1st DCA 1999). The order denying post-conviction relief is therefore reversed solely for the entry of an order striking that provision. The order is otherwise affirmed.
Because the issue was not raised before the state's answer brief, it has obviously waived the objection that the sentence did not contain the $100,000.00 fine provided by section 893.135(1)(b)1.b.