PALMER v. STATE (1999)

District Court of Appeal of Florida,First District.

Chester PALMER, Appellant, v. STATE of Florida, Appellee.

No. 98-1506.

Decided: September 03, 1999

James C. Banks and Robert A. Morris of The Law Offices of James C. Banks, Special Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General; Veronica S. McCrackin, Assistant Attorney General, Tallahassee, for Appellee.

In this direct criminal appeal, appellant seeks review of a ten-year habitual offender sentence imposed for possession of more than 20 grams of marijuana. Section 775.084(1)(a)3, Florida Statutes (1997), expressly precludes an habitual offender sentence for a felony which is a violation of section 893.13 “relating to the purchase or the possession of a controlled substance.” Possession of more than 20 grams of marijuana is such an offense. §§ 893.13(1)(a)2 & 893.03(1)(c)7, Fla. Stat. (1997). Appellant did not object to the sentence in the trial court. However, we have held that such a sentence constitutes fundamental error, which may be raised for the first time on appeal. Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998) (general division en banc). Accordingly, we vacate the sentence and remand to the trial court for resentencing. As we did in Nelson, we certify conflict with Maddox v. State, 708 So.2d 617 (Fla. 5th DCA) (en banc), review granted, 718 So.2d 169 (Fla.1998).

SENTENCE VACATED and REMANDED.

PER CURIAM.

BARFIELD, C.J., WEBSTER and BENTON, JJ., CONCUR.

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