                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

LAVARIO RAY,                         NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-1379

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed November 5, 2015.

An appeal from an order of the Circuit Court for Duval County.
Tatiana Salvador, Judge.

Lavario Ray, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.
      Lavario Ray appeals the summary denial of his motion seeking

postconviction relief brought pursuant to Florida Rule of Criminal Procedure

3.800(a). We affirm, without comment, the postconviction court’s denial of three

of the Appellant’s four claims. However, as to his claim that he was improperly
habitualized as to his conviction for conspiracy to purchase or possess cocaine, we

reverse.

      In the instant postconviction motion, the Appellant argued in part that he

was illegally sentenced to life in prison as an HFO for conspiracy to purchase or

possess cocaine with intent to sell. This claim has merit, as section

775.084(1)(a)(3), Florida Statutes (2004), does not permit habitualization for a

felony “relating to the purchase or the possession of a controlled substance.” See

also Penn v. State, 941 So. 2d 466, 466 (Fla. 1st DCA 2006). Further, this offense

is a third-degree felony, punishable by up to 5 years in prison. See §§

775.082(3)(d); 777.04(4)(d)(1); 893.13(1)(a)(1), Fla. Stat. (2004). Even if he had

been properly habitualized on this count, the maximum sentence that could have

been imposed was 10 years in prison. See § 775.084(4)(a)(3), Fla. Stat. (2004).

Thus, the Appellant’s life sentence is illegal.

      Accordingly, we reverse the trial court’s order as to this claim and remand

for further proceedings.


AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

WOLF, THOMAS, and KELSEY, JJ., concur.




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