Public-domain · open source
OpenJurist

623 So. 2d 1250

Nesmith v. State

District Court of Appeal of Florida

Decided September 29, 1993

District Court of Appeal of Florida · decided 1993-09-29

Relies on 602 So. 2d 914 - Florida Bar re: Advisory Opinion · 597 So. 2d 309 - King v. State · Russell v. State

Decided 1993-09-29

PATTERSON, Judge.

¶1The appellant challenges the sentence imposed upon him following the revocation of his probation. He argues that the trial court erred in sentencing him as a habitual offender.

¶2The appellant is actually attacking the original order designating him as a habitual offender and placing him on community control. The appellant has waived the issue since he failed to object to his designation as a habitual offender until the trial court revoked his community control. Since the appellant’s original sentence of habitualized community control is legal under King v. State, 597 So.2d 309 (Fla. 2d DCA), review denied, 602 So.2d 942 (Fla.1992), and his sentence upon revocation of community control is proper in all other réspeets, we affirm his judgment and sentence. However, we remand this case for the modification of the sentencing document and the entry of an order stating that although the appellant was classified as a habitual offender, he did not receive an enhanced sentence under the habitual offender statute and is therefore eligible to receive gain time. See Russell v. State, 605 So.2d 1342 (Fla. 2d DCA 1992).

FRANK, C.J., and DANAHY, J., concur.
/623/so2d/1250 · .json · Public domain