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705 So. 2d 950

Milner v. State

District Court of Appeal of Florida

Decided January 12, 1998

District Court of Appeal of Florida · decided 1998-01-12

Relies on Davis v. State · 616 So. 2d 1 - State v. Johnson · Pace v. State

Decided 1998-01-12

PER CURIAM.

¶1The appellant challenges the denial of his 3.800(a) motion, alleging his offense was committed during the window period when the habitual offender statute was unconstitutional, and therefore the enhancement rendered his sentence illegal by causing it to exceed the non-habitual statutory maximum for his offense. He failed to state whether he was actually affected by the unconstitutional amendments. See State v. Johnson, 616 So.2d 1 (Fla.1993). Nevertheless, the issue of whether appellant qualified for habitual felony offender classification and sentencing requires a factual determination and is therefore an inappropriate issue for consideration under Rule 3.800(a). See Davis v. State, 661 So.2d 1193 (Fla.1995); Pace v. State, 662 So.2d 1001 (Fla. 1st DCA 1995).

¶2AFFIRMED.

KAHN, MICKLE and LAWRENCE, JJ., concur.
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