BARNES v. STATE (1999)

District Court of Appeal of Florida,First District.

Anthony BARNES, Appellant, v. STATE of Florida, Appellee.

No. 98-3972.

Decided: September 14, 1999

Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Attorney General; Karla D. Ellis, Assistant Attorney General, Tallahassee, for appellee.

Barnes was convicted of burglary of a dwelling and violation of a domestic violence injunction. He asserts that there was insufficient evidence to support the burglary conviction and that the trial court erred in sentencing him as a habitual offender on the misdemeanor related to domestic violence. We affirm the burglary conviction, vacate the habitual offender sentence on the misdemeanor count, and remand for resentencing only on that count.

The state concedes that the trial court incorrectly sentenced Barnes as a habitual offender on the misdemeanor charge, but asserts the issue was not preserved for appeal. The sentencing error in this case constituted fundamental error which may be raised for the first time on appeal. See Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998).

PER CURIAM.

WOLF, DAVIS and BROWNING, JJ., concur.

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