MESA v. STATE, 934 So.2d 523 (Fla.App. 3 Dist. 2005)

Juan MESA, Appellant, v. The STATE of Florida, Appellee.

No. 3D05-1760.District Court of Appeal of Florida, Third District.
November 16, 2005.

An Appeal under Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jorge J. Perez, Judge.

Juan Mesa, in proper person.

Charles J. Crist, Jr., Attorney General, Robin F. Hazel, Assistant Attorney General, for appellee.

Before GERSTEN, GREEN, and RAMIREZ, JJ.

PER CURIAM.

Juan Mesa (“Mesa”), appeals the denial of his 3.850 motion for post conviction relief. Mesa raises several issues, only one of which has merit. Mesa contends the trial court erred in sentencing him to seven years in prison with a five-year minimum mandatory term, as both a habitual felony offender and a habitual violent offender. Based on the Florida Supreme Court’s decision in Clines v. State, 912 So.2d 550 (Fla. 2005), we agree and reverse for further proceedings.

In Clines, the Court applied the rule of lenity and concluded that “section 775.084 is ambiguous about whether multiple recidivist categories may be applied to a single criminal sentence.” Clines, 912 So.2d at 560. The Court further held “that the recidivist categories are designed to be hierarchical, not complementary . . . and only one recidivist category in section 775.084 may be applied to any criminal sentence.”Clines, 912 So.2d at 559-60.

Accordingly, we reverse the trial court’s order denying the motion for post conviction relief and remand to the trial court to either allow the State to remove one of the recidivist designations, or withdraw from the plea agreement and proceed to trial.

Reversed and remanded for further proceedings.