ANDRE ODELL GREGORY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gregory appeals the summary denial of his motion to correct an illegal sentence. The trial court imposed a nine-year minimum mandatory sentence that was not statutorily authorized, and though Gregory knowingly agreed to this illegal sentence as part of a negotiated plea, the court held that a defendant cannot consent to an illegal sentence and reversed.
A defendant cannot consent to or be bound by an agreement to accept an illegal sentence, even when the defendant voluntarily agrees to it, understands it is illegal, and receives counsel's advice. Therefore, the court reversed and remanded for the trial court to impose a legally authorized sentence.
[1] A defendant cannot assent to an illegal sentence, even if the plea was entered into freely and voluntarily with a complete understanding that the sentence was not statuto…
[2] A trial court's summary denial of a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800 is subject to reversal when the defendant's claim…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a defendant cannot assent to an illegal sentence”
Establishes the core holding that even voluntary agreement to an illegal sentence is invalid and cannot bind the court.
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Join FLexlaw to unlock all legal intelligenceGregory was originally sentenced to twenty years as a habitual felony offender with a fifteen-year minimum mandatory sentence. After his conviction wa…
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ROTHENBERG, J.
Andre Odell Gregory (“Gregory”) appeals the summary denial of his Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. We find his claim well-taken, and reverse.
Gregory was originally sentenced to twenty years as a habitual felony offender with a fifteen-year minimum mandatory as a prison releasee re-offender. After his judgment and sentence were affirmed on appeal, Gregory filed a rule 3.850 motion for postconviction relief, alleging ineffective assistance of counsel.
Pursuant to a negotiated plea between the State and Gregory, the trial court vacated Gregory’s sentence, dismissed his motion for post-conviction relief, and imposed a nine-year minimum mandatory sentence. The plea transcript reflects that the trial court, State, defense counsel, and Gregory knew that the imposition of a nine-year minimum mandatory sentence was not statutorily authorized, and therefore illegal.
Nevertheless, despite Gregory’s knowledge and his assurances that he would not file an appeal or a motion for postconviction relief challenging the minimum mandatory sentence, he has filed both, which now require judicial review. Although it is clear that the plea was: (1) fashioned to accommodate Gregory’s desire to be sentenced without being classified as a habitual offender or prison re-leasee re-offender; (2) entered into by Gregory freely and voluntarily with a complete understanding that the sentence was not statutorily authorized; and (3) entered into with the advice of counsel, a defendant cannot assent to an illegal sentence. Robbins v. State, 413 So. 2d 840 (Fla. 3d DCA 1982).
We, therefore, reverse and remand for the imposition of any sentence the trial court may legally impose.
Reversed and remanded.
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Kirkland v. State, 71 So. 3d 254 (Fla. 2d DCA 2011)…n v. State, 984 So. 2d 656, 657 [*255] (Fla. 1st DCA 2008). As such, Kirkland claimed that his PRR treatment in counts three through six amounted to an illegal sentence and that a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So. 2d 1287, 1288 (Fla. 3d DCA 2009). Accordingly, Kirkland requested that the court issue an order striking the PRR enhancements from counts three through six. The postconviction court treated Kirkland’s motion as a motion to correct illegal sentence pursuant…
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Geftos v. State, 12 So. 3d 910 (Fla. 4th DCA 2009)…t be a necessary element of the felony. Paul v. State, 958 So. 2d 1135, 1137 (Fla. 4th DCA 2007). The defendant, though, did not preserve this issue for appeal. We recognize that “a defendant cannot assent to an illegal sentence.” Gregory v. State, 997 So. 2d 1287, 1288 (Fla. 3d DCA 2009). We further acknowledge that “a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So. 2d 203, 205 (Fla. 4th DCA 2002).…
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Williams v. State, 35 So. 3d 165 (Fla. 3d DCA 2010)…rred in this case in imposing a minimum mandatory sentence on this count as well. Although the appellant expressly agreed to the sentence as part of a negotiated plea agreement, a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So. 2d 1287, 1288 (Fla. 3d DCA 2009). Accordingly, we reverse the appellant’s sentence and remand for the trial court to conform its oral pronouncement to its written sentence and strike the three-year minimum mandatory term. Because these amendments are minis…
Authorities Cited
- Robbins v. State, 413 So. 2d 840 (Fla. 3d DCA 1982)