from the Circuit Court for Charlotte County; Amy R.
L. Dimmig, II, Public Defender, and Maureen E. Surber,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, for Appellee.
ORDER OF THE COURT
appellant's motion for rehearing, filed January 18, 2018,
is granted to the extent that this court's prior opinion
of January 17, 2018, is withdrawn and in its stead we
substitute this order. No further motions for rehearing will
ORDER STRIKING INITIAL BRIEF
LaROSE, Chief Judge.
Hubbard, Jr., seeks review of his judgment and sentences for
possession and sale of cocaine. We have jurisdiction.
See Fla. R. App. P. 9.140(b)(1)(A), (F).
Appellant's counsel filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), in which she
represented that she "can find no meritorious argument
to support the contention that the trial court committed
significant reversible error." We must conduct an
independent review of the record following such briefing.
See In re Anders Briefs, 581 So.2d 149, 151 (Fla.
1991) (stating that following "counsel's submission
of . . . an Anders brief . . . [t]he appellate court
then assumes the responsibility of conducting a full and
independent review of the record to discover any arguable
issues apparent on the face of the record"). Our review
reveals a sentencing error apparent on the face of the
record. Accordingly, we strike counsel's brief under the
authority of Florida Rule of Appellate Procedure
9.140(g)(2)(B). See Clark v. State, 223 So.3d 1126,
1126-27 (Fla. 1st DCA 2017) (striking Anders brief
pursuant to rule 9.140(g)(2)(B) and directing appellate
counsel to file motion to correct sentencing error upon
court's discovery of "multiple sentencing
errors"); K.O. v. State, 228 So.3d 162, 163
(Fla. 1st DCA 2016) (striking Anders brief to allow
appellate counsel to file motion with the trial court under
Florida Rule of Criminal Procedure 3.800(b) addressing
sentencing error uncovered by appellate court); Adams v.
State, 197 So.3d 641, 642 (Fla. 1st DCA 2016)
("[O]n the court's own motion and pursuant to
Florida Rule of Appellate Procedure 9.140(g)(2)(B), the
[Anders] brief . . . is stricken in order to permit
the filing of a motion pursuant to Florida Rule of Criminal
the jury's return of guilty verdicts, the trial court
sentenced Mr. Hubbard to concurrent terms of fifteen
years' imprisonment on the sale and five years'
imprisonment for the possession. The trial court designated
him a habitual felony offender (HFO) for both offenses.
However, the HFO designation for Mr. Hubbard's possession
offense is improper.
section 775.084(1)(a)(3), Florida Statutes (2013), a
defendant is subject to enhanced HFO sentencing when
"[t]he felony for which the defendant is to be sentenced
. . . is not a violation of [section] 893.13 relating to the
. . . possession of a controlled substance." See
also Coleman v. State, 927 So.2d 1048, 1048 (Fla. 2d DCA
2006) ("Section 775.084(1)(a)(3) . . . precludes
sentencing a defendant as a habitual felony offender for
violating section 893.13 relating to purchase or possession
of a controlled substance."); Virgil v. State,
884 So.2d 373, 373-74 (Fla. 2d DCA 2004) (holding that a
defendant may not be sentenced as a HFO for the offense of
possession of a controlled substance); Roberts v.
State, 753 So.2d 136, 137 (Fla. 2d DCA 2000) ("Only
drug offenses relating to the purchase or the possession of
controlled substances are exempt from habitualization;
defendants sentenced for offenses relating to the sale of
narcotics do not enjoy the benefit of this statutory
to rule 9.140(g)(2)(B), we strike the Anders brief
so that counsel may file a motion under Florida Rule of
Criminal Procedure 3.800(b)(2) to correct the sentencing
error identified above. Within twenty days of the date of
this order, counsel shall file such motion with the trial
court, which the trial court shall dispose of in accordance
with the procedures enumerated in rule 3.800(b)(2)(B).
Following disposition, the clerk of the court shall transmit
a supplemental record pursuant to Florida Rule of Appellate
Procedure 9.140(f)(6), and counsel shall file an amended
initial brief within twenty days following transmittal of the
and BADALAMENTI, JJ., Concur.
We note that counsel's
representation imposes a higher standard than that
contemplated by the Court in Anders. See Chapman
v. State, 186 So.3d 3, 6 (Fla. 2d DCA 2015)
("Counsel's representation in this case that she
'is unable to make a good faith argument that reversible
error occurred in the trial court' seems to this court to