Antonio R. Hernandez v. State of Florida , 141 So. 3d 1247 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ANTONIO R. HERNANDEZ, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-0363
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 7, 2014.
An appeal from the Circuit Court for Columbia County.
Julian E. Collins, Judge.
Antonio R. Hernandez, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney
General, Tallahassee, for Appellee.
WETHERELL, J.
In this postconviction case, the appellant, Antonio R. Hernandez, contends
that his habitual felony offender (HFO) sentence for possession of contraband in a
state correctional facility is illegal because the contraband he possessed was a
controlled substance. The trial court concluded that the sentence is legal because
possession of contraband in a state correctional facility is not a violation of section
893.13, Florida Statutes. We agree and, therefore, affirm the trial court’s order
denying Hernandez’s rule 3.800(a) motion.
In 2006, following a plea, Hernandez was convicted of possession of
contraband in a state correctional facility in violation of section 944.47, Florida
Statutes. The contraband possessed by Hernandez was cannabis, and as a result, he
was also convicted of possession of cannabis in violation of section 893.13, Florida
Statutes. Hernandez was sentenced as an HFO to 16 years in prison for the
possession of contraband conviction, but the prison term was suspended
conditioned upon Hernandez’s successful completion of community control and
probation. In 2008, after Hernandez admitted a probation violation, the trial court
revoked his probation and imposed the previously-suspended prison sentence.
Hernandez did not file a direct appeal.
In 2013, Hernandez filed a rule 3.800(a) motion alleging that his HFO
sentence is illegal because the possession of contraband conviction upon which it
is based involved the possession of a controlled substance.1 The trial court denied
the motion, but noted the absence of any controlling authority from this court on
1
The motion did not challenge the legality of Hernandez’s concurrent non-HFO
sentence for possession of cannabis. This court previously affirmed orders denying
Hernandez’s postconviction motions challenging that conviction and sentence on
double jeopardy grounds. Hernandez v. State, 81 So. 3d 420 (Fla. 1st DCA 2011)
(table); Hernandez v. State, 53 So. 3d 1027 (Fla. 1st DCA 2010) (table).
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the issue raised by Hernandez.2 This appeal followed.
A defendant may be sentenced as an HFO if the criteria in section
775.084(1)(a), Florida Statutes, are met. Here, Hernandez contends that his HFO
sentence is illegal because the possession of contraband conviction does not meet
the criterion in subparagraph (1)(a)3. of the HFO statute. That subparagraph
provides in pertinent part that a defendant may not be sentenced as an HFO for an
offense that is “a violation of s. 893.13 relating to the purchase or the possession of
a controlled substance.” § 775.084(1)(a)3., Fla. Stat. (2005).
In support of the argument that his HFO sentence is illegal, Hernandez relies
primarily on Hughes v. State, 850 So. 2d 664 (Fla. 1st DCA 2003), in which this
court held that the defendant was improperly sentenced as an HFO based upon his
prior conviction for obtaining a controlled substance by fraud in violation of
section 893.13(3)(a)1., Florida Statutes. The court reasoned that this offense
required an intent to possess a controlled substance and “is therefore, on its face, a
violation of s. 893.13 relating to the purchase or possession of a controlled
substance.” Id. at 665. Accord Dougherty v. State, 33 So. 3d 732, 734 (Fla. 5th
DCA 2010) (reversing HFO sentence for conviction of acquiring a controlled
substance by fraud because the statute defining that offense “clearly relates to
2
This court affirmed HFO sentences imposed for convictions of possession of
contraband in a state correctional facility in Cribbs v. State, 599 So. 2d 246 (Fla.
1st DCA 1992), and Leftwich v. State, 589 So. 2d 385 (Fla. 1st DCA 1991), but
those cases did not address the specific issue raised by Hernandez.
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possession of a controlled substance and is included within section 893.13”).
Hughes is distinguishable. Unlike the defendant in Hughes, who had been
convicted of violating a specific provision in section 893.13, Hernandez was
convicted of violating a provision in chapter 944, Florida Statutes. The fact that the
contraband possessed by Hernandez was a controlled substance is immaterial for
purposes of the HFO statute because the statute does not prohibit HFO sentences
for all crimes involving the possession of a controlled substance; rather, the statute
only prohibits HFO sentences for crimes listed in section 893.13 that involve the
purchase or possession of a controlled substance. See Baldwin v. State, 684 So. 2d
254 (Fla. 3d DCA 1996) (affirming HFO sentence for tampering with evidence
conviction because, even though evidence tampered with was cocaine, defendant’s
conviction “is not under section 893.13, Florida Statutes, but instead is under the
tampering statute, section 918.13, Florida Statutes”).
Because Hernandez was not sentenced as an HFO for an offense listed in
section 893.13, his sentence is not illegal and the trial court correctly denied his
rule 3.800(a) motion. Accordingly, we affirm the order on appeal.
AFFIRMED.
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LEWIS, C.J., and WOLF, J., CONCUR.
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