
    Yvan PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 92-2190.
    District Court of Appeal of Florida, Fourth District.
    May 26, 1993.
    Rehearing Denied June 28, 1993.
    
      Richard L. Jorandby, Public Defender, and Debra Moses Stephens, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Yvan Pierre was convicted of possession of cocaine with intent to deliver or sell. He appeals his conviction on the ground of prosecutorial misconduct and his sentence on the ground that the trial court erroneously believed that declaration of appellant as an habitual felony offender was mandatory. We affirm.

Appellant complains that the prosecutor’s closing argument was so prejudicial that it denied appellant a fair trial. No useful purpose would be served by going into detail as to each aspect of the closing argument with which appellant takes issue. This is a case in which it may fairly be said that the evidence of guilt is overwhelming. We therefore hold that any error in overruling appellant’s objections to the remarks of the prosecutor during closing argument was harmless, beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We turn, then, to the sentencing aspect of this appeal.

It is now established that declaration as an habitual felony offender or habitual violent felony offender, where the statutory criteria are met, is a mandatory obligation imposed on the trial court by statute. Sentencing, on the other hand, retains some permissive aspects. See Burdick v. State, 594 So.2d 267, 271 (Fla.1992); see also King v. State, 597 So.2d 309 (Fla. 2d DCA), rev. denied, 602 So.2d 942 (Fla.1992); Wright v. State, 599 So.2d 179 (Fla. 2d DCA1992). The trial court followed precedent here, and we therefore affirm this point on appeal.

AFFIRMED.

ANSTEAD and WARNER, JJ., concur.

HERSEY, J., concurs specially with opinion.

HERSEY, Judge,

concurring specially.

We interpret case law as holding that where the statutory criteria are met, the trial court is obligated to declare appellant an habitual felony offender. We take this one step further and, purporting to discern, and then apply, legislative intent, we adopt the premise that the subsequent sentencing is discretionary. Do we thus engage in an exercise in futility? What is accomplished by declaring appellant an habitual felony offender or an habitual violent felony offender and then electing to sentence under the guidelines (assuming a basis for the requisite statutory finding)? If it be suggested that this introduces additional discretion into the sentencing process, then the suggestion sinks from its own weight. First, the very purpose of the sentencing guidelines is to reduce variability and thus to increase fairness. Second, and more important, if the trial court finds appellant not to be a danger to the public, sentence may be imposed without regard to section 775.084 and pursuant to the sentencing guidelines. But that is precisely what the trial court is required to do where the habitual offender statute is not implicated. So what is gained (or lost) by the empty declaration? I suspect this is a virus inserted inadvertently into the statutory scheme by periodic quick-fixes adopted by successive legislatures. Then again I may be missing something. In any event I concur in the majority opinion.  