Nesmith v. State

PATTERSON, Judge.

The appellant challenges the sentence imposed upon him following the revocation of his probation. He argues that the trial court erred in sentencing him as a habitual offender.

The appellant is actually attacking the original order designating him as a habitual offender and placing him on community control. The appellant has waived the issue since he failed to object to his designation as a habitual offender until the trial court revoked his community control. Since the appellant’s original sentence of habitualized community control is legal under King v. State, 597 So.2d 309 (Fla. 2d DCA), review denied, 602 So.2d 942 (Fla.1992), and his sentence upon revocation of community control is proper in all other réspeets, we affirm his judgment and sentence. However, we remand this case for the modification of the sentencing document and the entry of an order stating that although the appellant was classified as a habitual offender, he did not receive an enhanced sentence under the habitual offender statute and is therefore eligible to receive gain time. See Russell v. State, 605 So.2d 1342 (Fla. 2d DCA 1992).

FRANK, C.J., and DANAHY, J., concur.