Jimerson v. State 620 So. 2d 1147

PER CURIAM.

We affirm without prejudice to appellant’s filing a rule 3.850 motion on the issue of appellant’s actual notice of the state’s intent to seek habitualization.

GLICKSTEIN and STONE, JJ., concur.

FARMER, J., dissents with opinion.

FARMER, Judge,

dissenting.

I cannot agree that the Public Defender’s Anders brief shows the utter lack of “any arguable issue apparent on the face of the record.” In re Appellate Court Response to Anders Briefs, 581 So.2d 149, 151 (Fla.1991). The record positively shows that defendant himself was never given written notice of the state’s interest in having him sentenced as a habitual felony offender. While the failure to give written notice might be harmless error, see Massey v. State, 609 So.2d 598 (Fla.1992), that could be so only if the record positively showed that the defendant personally- had actual notice before the sentencing hearing that the state, wanted him to suffer enhanced penalties. 609 So.2d at 600.

Here the record shows only oral notice to defense counsel. In contrast to Massey it does not show that defendant himself actually knew before the sentencing hearing that he faced enhanced penalties. Hence the face of the record demonstrates to me apparent error, not the apparent lack of error. I therefore dissent.