
    Hugh Don SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 97-764.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1998.
    Rehearing Denied March 24, 1998.
    James C. Lohman, Tallahassee, for Appellant.
    
      Robert A. Butterworth, Attorney General, Tallahassee, and Roberta J. Tylke, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED.

GOSHORN and THOMPSON, JJ., concur.

ANTOON, J., concurs specially, with opinion.

ANTOON, Judge,

concurring.

I agree that the denial of the defendant’s petition for writ of habeas corpus should be affirmed. However, the affirmance should be without prejudice in' order to allow the defendant the opportunity to seek a belated appeal in the second district arguing ineffective assistance of appellate counsel for failng to raise the issue of ex post facto application of the 1989 Habitual Offender Act. See generally Swinson v. State, 588 So.2d 296 (Fla. 5th DCA 1991)(eic post facto application of habitual offender act was fundamental error).  