MARRERO v. STATE, 741 So.2d 634 (Fla.App. 3 Dist. 1999)

CARLOS MARRERO, Appellant, v. THE STATE OF FLORIDA, Appellee.

No. 99-1987.District Court of Appeal of Florida, Third District.
Opinion filed September 29, 1999.

An Appeal under Fla.R.App.P. 9.140(i) from the Circuit Court for Dade County, Ellen L. Leesfield, Judge, L.T. No. 96-34530.

Carlos Marrero, in proper person.

Robert A. Butterworth, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before NESBITT, GODERICH and SORONDO, JJ.

PER CURIAM.

Carlos Marrero (defendant) appeals from an order of the trial court denying his motion to correct illegal sentence. He contends that the trial court erred in imposing a ten year habitual offender sentence upon his conviction for the offenses of unlawful sale or delivery of cocaine and possession of cocaine. The trial court properly denied the motion with respect to the sentence imposed in count one for unlawful sale or delivery of cocaine. See Williams v. State, 667 So.2d 914, 915 (Fla. 3d DCA 1996) (habitual offender adjudication permissible where defendant was convicted of violation of section 893.13, Florida Statutes, for sale [rather than purchase or

Page 635

possession] of cocaine). However, the state correctly concedes that the trial court erred in imposing a habitual offender sentence as to the conviction in count two for the offense of possession of cocaine. See Pittman v. State, 733 So.2d 594, 595 (Fla. 3d DCA 1999). Accordingly, we vacate the habitual offender sentence imposed as to this count alone and remand with instructions to re-sentence the defendant within the applicable sentencing guidelines.

Affirmed in part; reversed in part and remanded.