MICHAEL R. FRANKE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2008-10-22
No. 2D08-299
FULMER and LaROSE, JJ., Concur.
997 So. 2d 424 Florida District Court of Appeal, Second District (2008) Positive Treatment
Cited by 13 cases

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Synopsis

Michael Franke appealed the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court found that his 50-year sentence for attempted first-degree murder with a firearm exceeded the statutory maximum of 40 years for a life felony, requiring resentencing on that count, but affirmed the denial of his other claims regarding armed robbery and armed burglary sentences and habitualization.


Holding

The court reversed as to the attempted first-degree murder sentence, holding that the 50-year sentence exceeded the 40-year maximum permitted for a life felony and remanded for resentencing not to exceed 40 years. The court affirmed denial of claims regarding armed robbery and armed burglary sentences because those offenses are first-degree felonies (not life felonies) punishable by life and were thus properly sentenced and subject to habitualization. The court also affirmed denial of the notice of intent claim as not properly raised under Rule 3.800(a).


Headnotes

[1] A sentence for a life felony that is not life imprisonment cannot exceed forty years.

[2] A plea agreement cannot support an illegal sentence.

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Key Quotes

“When the trial court opts for a term of years instead of a life sentence [for a life felony], it may not impose a sentence longer than forty years.”

Establishes the statutory maximum sentence limit for life felonies when a term of years is chosen instead of life imprisonment.

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Facts & Procedural History

Franke was charged with four offenses committed on February 13, 1993, including attempted first-degree murder with a firearm, armed robbery, and armed…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

Michael Franke appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse in part and affirm in part.

Franke was charged with four offenses alleged to have been committed on February 13, 1993. Only three of the offenses are at issue in the present appeal: attempted first-degree murder with a firearm, armed robbery, and armed burglary.

After entering a negotiated plea, Franke was sentenced to fifty years’ imprisonment on each of the three charges, with a three-year mandatory minimum on each charge for use of a firearm. See § 775.087(2), Fla. Stat. (1991). The sentences were imposed to run concurrently. Additionally, he was designated a habitual violent felony offender (HVFO) as to the armed robbery and armed burglary, and a fifteen-year mandatory minimum sentence was imposed for each charge. Franke did not file a direct appeal of his judgment and sentence. In the present case he filed a rule 3.800(a) motion raising several claims, all of which the postconviction court denied.

Franke first alleged that the sentence for the attempted first-degree murder with a firearm is illegal because the sentencing options for a life felony1 at the time of his offense were either life imprisonment or a maximum term of forty years. Franke is correct. See § 775.082(3)(a), Fla. Stat. (1991) (listing these options); see also Stephens v. State, 627 So. 2d 543, 544 (Fla. 2d DCA 1993) (“When the trial court opts for a term of years instead of a life sentence [for a life felony], it may not impose a sentence longer than forty years.”).

Moreover, not even a plea agreement can support an illegal sentence. McDuffie v. State, 946 So. 2d 99, 100 (Fla. 2d DCA 2006). Because the postconviction court erred in denying this claim, we reverse for the court to resentence Franke for the count of attempted first-degree murder with a firearm; the sentence may not exceed forty years.

Franke alleged the same claim with respect to his sentences for armed robbery and armed burglary; that is, he argued that the fifty-year sentences are illegal because they were reclassified to life felonies due to the use of a firearm, § 775.087(l)(a), and thus subject to either life imprisonment or a forty-year maximum sentence. In fact, however, the sentencing documents reflect no reclassification. Indeed, the trial court could not have reclassified the offenses because the use of a firearm is an essential element of each of them. See § 775.087(1); State v. Tripp, 642 So. 2d 728, 730 n. 2 (Fla.1994) (attempted armed robbery); Harris v. State, 766 So. 2d 403, 404 (Fla. 2d DCA 2000) (armed burglary).

Rather, the sentences were imposed based on the statutory definitions of each offense as a first-degree felony punishable by life, §§ 812.13(2)(a), § 810.02(b), which is distinct from a life felony, see James v. State, 775 So. 2d 347, 348 (Fla. 1st DCA 2000) (citing Burdick v. State, 594 So. 2d 267, 268-69 (Fla.1992)).

We therefore affirm the posteonviction court’s denial of this claim.

Franke raised an additional claim with respect to the armed robbery and armed burglary charges: that because in his view they are life felonies, they were not subject to habitualization. As just noted, the two offenses are first-degree felonies punishable by life. A first-degree felony is subject to habitualization. § 775.084(4)(a)(l); see also Harris v. State, 593 So. 2d 301, 301 (Fla. 2d DCA 1992) (noting that a “first degree felony, no matter what the punishment imposed by the substantive law that condemns the particular criminal conduct involved, is still a first degree felony and subject to enhancement by Section 775.084(4)(a)(l), Florida Statutes” (citation and internal quotation marks omitted)).

Therefore, there was no error as to habitualization.

We affirm the postconviction court’s denial of this claim.

Finally, Franke claims that the “general notice of intent” of habitualization served on him was constitutionally infirm because it did not specify which category of habitu-alization the State would be seeking. The postconviction court properly denied this claim, and we affirm. See Judge v. State, 596 So. 2d 73, 77-78 (Fla. 2d DCA 1991) (concluding that the issue of whether there was a failure to give notice of intent to seek a habitual offender sanction is not properly raised in a rule 3.800(a) motion).

In sum, we reverse only as to the sentence imposed on the count of attempted first-degree murder with a firearm.

Reversed in part and remanded with instructions; affirmed in part.

FULMER and LaROSE, JJ., Concur. . Attempted first-degree murder, §§ 782.04(l)(a), 777.04(1), (4)(a), with a firearm is a life felony due to the firearm enhancement of section 775.087(l)(a). See Strickland v. State, 437 So. 2d 150, 152 (Fla. 1983).


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Citator

Cited By (11 total)

  • Thomas v. State, 252 So. 3d 1201 (Fla. 2d DCA 2018)
  • Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012)
    …properly entered. As we have done previously, we distinguish reclassification of an offense based on section 775.087 from reclassification based on essential elements of a crime under the substantive criminal statute violated. See Franke v. State, 997 So. 2d 424, 426 (Fla. 2d DCA 2008) (“[T]he trial court could not have reclassified the offenses [under section 775.087] because the use of a firearm is an essential element of each of them.”). Section 775.087(1) specifically excludes those felonies for which t…
  • Black v. State, 52 So. 3d 830 (Fla. 4th DCA 2011)
    …o sentence appellant to life imprisonment as an HFO for those offenses. Armed robbery and armed burglary are first-degree felonies punishable by life, not life felonies. See §§ 812.13(2)(a), 810.02(2)(b), Fla. Stat. (1996); see also Franke v. State, 997 So. 2d 424, 425-26 (Fla. 2d DCA 2008) (holding that armed robbery and armed burglary cannot be reclassified to life felonies under section 775.087(1), Florida Statutes, because the use of a weapon or firearm is an essential element of each offense). First-degr…

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