
    Earnest L. SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. 96-4670.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1999.
    Nancy A. Daniels, Public Defender; Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

After he violated community control, Earnest L. Spencer was sentenced as a habitual violent felony offender for the first time. Sentencing him as a habitual violent felony offender, after an earlier decision not to “habitualize” him, violated the rule laid down in King v. State, 681 So.2d 1136 (Fla.1996). We therefore reverse and remand for resentencing.

In keeping with a plea agreement, Mr. Spencer pleaded guilty to aggravated battery and to two misdemeanors, acknowledging in the written plea agreement that his record made him eligible for sentencing as a habitual violent felony offender. The trial court did not, however, originally impose a habitual violent felony offender sentence.

Instead, adjudicating him guilty of all three offenses, the trial court pronounced concurrent one-year sentences in county jail for the misdemeanors, and placed him on ten years’ probation thereafter for aggravated battery. After Mr. Spencer completed his jail sentences, he violated conditions of his probation, his probation was revoked, and he was resentenced to community control. When the trial court subsequently revoked community control, it sentenced him to fifteen years’ incarceration as a habitual violent felony offender, albeit with credit for time served.

An illegal sentence is fundamental error which can be remedied at any time, including on direct appeal. See Nelson v. State, 719 So.2d 1230, 1231 (Fla. 1st DCA 1998) (en banc). The sentence appellant received upon revocation of community control was illegal because it “patently fail[ed] to comport with statutory or constitutional limitations.” State v. Mancino, 714 So.2d 429, 433 (Fla.1998). When a sentence has been illegally increased upon resentencing, nothing prevents a reviewing court’s correcting the sentence that results. See Hopping v. State, 708 So.2d 263, 265 (Fla.1998); House v. State, 696 So.2d 515 (Fla. 4th DCA 1997).

“Sentencing under the habitual felon statute is permissive, not mandatory.” King v. State, 681 So.2d 1136, 1138 (Fla.1996). See Donald v. State, 562 So.2d 792, 795 (Fla. 1st DCA 1990). In initially placing Mr. Spencer on probation, the trial court rejected the habitual violent felony offender sentencing option. See King v. State, 681 So.2d at 1140. Even after Mr. Spencer’s probation was revoked, moreover, the court did not seek to sentence him as a habitual violent felony offender. Instead, the trial court sentenced him to community control.

Although Mr. Spencer acknowledged in the original, written plea agreement that he met the legal criteria for sentencing as a habitual violent felony offender, he did so before the trial court (twice) decided not to impose a habitual violent felony offender sentence. He agreed to probation but never agreed to “probation as an habitual offender ... [or to any] hybrid split sentence.” Id.

Once the trial court determined that habitual violent felony offender sentencing was inappropriate and imposed a sentence under section 775.082, the original sentence under section 775.082 which Mr. Spencer began to serve precluded resen-tencing under section 775.084. See Davis v. State, 587 So.2d 580, 581 (Fla. 1st DCA 1991). Having originally elected not to enhance Mr. Spencer’s sentence under section 775.084, the trial court had no authority thereafter to enhance his sentence under section 775.084. See King, 681 So.2d at 1140; see also Grimes v. State, 616 So.2d 996, 998 (Fla. 1st DCA 1992); Davis, 587 So.2d at 581. Cf. Hopping, 708 So.2d at 265.

Accordingly, we reverse the habitual violent felony offender sentence later imposed by the trial court, and remand for resen-tencing in keeping with the guidelines.

Reversed and remanded.

ALLEN, J., SPECIALLY CONCURS WITH OPINION.

LAWRENCE, J., DISSENTS WITH OPINION.

ALLEN, J.,

specially concurring.

I agree with the result reached in Judge Benton’s opinion because such is required by the supreme court’s decision in King v. State.

LAWRENCE, J.,

dissenting.

Ernest L. Spencer (Spencer) pleaded guilty to trespass of an inhabited structure, resisting law enforcement without violence, and aggravated battery, as the result of breaking into the home of the victim, biting her on the face and beating her with a bottle before being stabbed with a kitchen knife by the victim’s child. Spencer acknowledged his habitual violent felony offender status by stating, in his plea agreement: “I ... agree that I qualify for sentencing as a habitual violent felony offender.” The judge pursuant to the plea agreement sentenced Spencer to concurrent one-year jail sentences for the misdemeanors, followed by ten years’ probation for the felony (aggravated battery).

Spencer’s probation was revoked and he was sentenced to community control and five years’ probation. Spencer subsequently violated his community control and was sentenced to fifteen years in prison as an habitual violent felon. Spencer, who neither objected to his sentence at the sentencing hearing, nor by postsentencing motion, appeals.

We know that: “An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” § 924.051(3), Fla. Stat. (1997). It is undisputed that Spencer failed to raise below the issue he raises here.

The majority nevertheless finds that Spencer’s habitual offender sentence is illegal, and hence fundamental error, based on King v. State, 681 So.2d 1136 (Fla.1996). The King court negatively answered the question:

After a trial judge makes a valid finding that a defendant is an habitual felony offender, and imposes a non-habitual offender sentence of prison, followed by probation, and the defendant serves the prison term, but subsequently violates his order of probation, may the trial judge, upon resentencing, impose an habitual felony offender prison term, the total of which does not exceed the maximum allowed by law, provided that it allows credit for all prior periods of incarceration?

Id. at 1137. The court held:

In this case, the record shows that the original sentencing judge not only concluded that it was unnecessary to sentence King as an habitual offender, but also explicitly rejected the habitual offender sentencing option and imposed a guidelines sentence under section 775.082 instead. Having served the imprisonment portion of his sentence under the guidelines, King cannot be sentenced as an habitual offender upon revocation of probation.

Id. at 1140 (emphasis added). King thus is inapposite to the instant case: Spencer’s sentencing judge reached no such conclusion. The King court moreover expressly noted that negotiated sentences are valid:

[A] hybrid split sentence of incarceration under the guidelines followed by probation as an habitual offender, although not authorized by statute or rule, is not an illegal sentence unless the total sentence imposed exceeds the statutory maximum for the particular offense at issue.
The defendant in the conflict case apparently agreed to a hybrid split sentence as part of a negotiated plea agreement. While a trial court cannot impose an illegal sentence pursuant to a plea bargain, it can impose a negotiated sentence that is not specifically authorized by statute.

Id. (citation omitted) (emphasis added). Spencer, unlike King, originally negotiated a sentence rather than going to trial. Spencer, unlike King, originally acknowledged his habitual violent felony offender status as part of his written guilty plea. The trial judge was authorized to sentence Spencer to “any sentence which [he] might have originally imposed before placing [Spencer] on probation or into community control.” § 948.06(1), Fla. Stat. (1997).

Spencer undisputedly failed to preserve the sentencing issue he raises here and, in my view, fails to show an illegal sentence within the meaning of King. I therefore would affirm the trial judge’s sentence of fifteen, years in prison as an habitual violent felony offender.  