Opinion
No. 5D01-9.
Opinion filed November 30, 2001.
Appeal from the Circuit Court for Sumter County, Hale Stancil, Judge.
James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
In this Anders appeal our independent review of the record disclosed the existence of a serious sentencing error. See Bryant v. State, 760 So.2d 1034 (Fla. 5th DCA 2000). We requested supplemental briefing from the public defender and the attorney general and now conclude that the sentence is illegal, and should be vacated.
Anders v. California, 386 U.S. 738 (1967).
The facts in this case are as follows. Washington was convicted of trafficking in cocaine after a jury trial. The amount of contraband was more than 200 grams but less than 400 grams. The trial court sentenced him for a term of life imprisonment, as an habitual offender and imposed a $100,000 fine. This sentence is legal under the present version of the drug trafficking statute, except it appears the court would be required to sentence the defendant to a "mandatory minimum term of imprisonment of 7 years." § 893.135(1)(b)1.b., Fla. Stat. (2000). However, that statute did not become effective until October 1, 2000, and Washington committed his offense on March 24, 1999.
Thus the applicable version of the drug trafficking statute in this case was section 893.135(1)(b)1.b., Florida Statutes (1997). That statute requires the defendant be sentenced pursuant to the sentencing guidelines and pay a fine of $100,000. This court explained in Bryant that this language places the lesser trafficking offenses under the guidelines and removes them from sentencing under the habitual offender statute.
The state argues that Washington failed to preserve the sentencing error by either objecting at sentencing or filing a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). However, it appears the sentence is illegal under State v. Manicino, 714 So.2d 429 (Fla. 1998), as it fails to comport with statutory or constitutional limitations. If the error is illegal for purposes of a rule 3.800(a) proceeding like Bryant, it is clearly illegal for purposes of a direct appeal, as in this case. See Govea v. State, 785 So.2d 638 (Fla. 5th DCA 2001). Here the seriousness of the error is beyond dispute as it exceeds the statutory maximum. The guidelines indicated a minimum permissible sentence of 60.78 months and a maximum of 30 years, and Washington received a life sentence under the habitual felony offender statute.
The state also argues that Washington should not be resentenced because the legislature amended the statute in 2000 to permit habitualization for the offense in question. Thus, the state argues the Legislature never intended the instant offense to be immune from habitualization. That may be. However, the statute to be applied is the one in effect when the offense was committed. See Heggs v. State, 759 So.2d 620 (Fla. 2000); Bryant. This statute expressly exempts this offense from habitualization and mandates a guidelines sentence. No other interpretation of the statutory language is possible from the plain language used in the statute.
Sentence VACATED; REMANDED for resentencing.
COBB and ORFINGER, R.B., JJ., concur.