Demosthenes v. State

907 So.2d 646 (2005) Jonathon DEMOSTHENES, a/k/a Fritz Demosthenes, Appellant, v. The STATE of Florida, Appellee. No. 3D05-282. District Court of Appeal of Florida, Third District. July 27, 2005. Ivy R. Ginsberg, Miami, for appellant. Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee. Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ. CORTIÑAS, Judge. The defendant appeals the trial court's denial of his motion to correct an illegal sentence under Fla. R. Crim. P. 3.800(a). Defendant claims he is entitled to relief on the ground that the trial court erred by using a 1994 case as a qualifying prior conviction for habitual offender purposes. *647 The defendant correctly acknowledges that this issue has been previously addressed and decided in Turner v. State, 891 So.2d 1215 (Fla. 3d DCA 2005)(adopting the reasoning of McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003)). These cases held that the sanction of probation may count towards the calculation of the sentence under the habitual felony offender statute, section 775.084, Florida Statutes. We certify direct conflict with Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003). Affirmed.