Starkes v. State

46 So. 3d 621 (2010)

Jimmy D. STARKES, Appellant,
v.
STATE of Florida, Appellee.

No. 1D10-2594.

District Court of Appeal of Florida, First District.

October 13, 2010.

Jimmy D. Starkes, pro se, Appellant.

Bill McCollum, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant seeks review of the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). His motion alleges that the trial court erred in imposing a habitual felony offender sentence for the offense of possession of cocaine. Section 775.084(1)(a)(3), Florida Statutes, provides that the felony for which the defendant is being sentenced and one of the two predicate offenses cannot be a conviction relating to the purchase or the possession of a controlled substance. The postconviction court failed to attach any record attachments which refute the appellant's claim that he was habitualized for a possession conviction.

Accordingly, we reverse the denial of the rule 3.800(a) motion and remand to either attach portions of the record refuting the appellant's claim or strike the habitual felony offender designation.

REVERSED AND REMANDED.

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.