ANDREW SKINNER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Andrew Skinner appeals the summary denial of his motion to vacate his sentence for unarmed robbery. The court finds that Skinner's life sentence for unarmed robbery exceeded the statutory maximum of 15 years and must be vacated, though his conviction stands and other sentences remain undisturbed.
A sentence exceeding the statutory maximum is always subject to collateral attack under Fla.R.Crim.P. 3.850 and cannot be waived by failure to raise it on direct appeal. An illegal sentence is fundamental and jurisdictional in nature and can never be considered harmless or moot, even when the defendant has concurrent sentences for other crimes.
[1] A sentence exceeding the statutory maximum for the crime of conviction is subject to collateral attack under Fla.R.Crim.P. …
[2] A sentence in excess of the statutory maximum is a fundamental and jurisdictional error that cannot be considered moot or harmless.
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Join FLexlaw to unlock all legal intelligence“a sentence not authorized by law is always subject to collateral attack under Fla.R.Crim.P. 3.850”
Establishes that illegal sentences can be challenged collaterally regardless of waiver
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Join FLexlaw to unlock all legal intelligenceSkinner was charged by information with unarmed robbery (containing no allegations of firearm, deadly weapon, or weapon), found guilty by jury, and se…
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HUBBART, Judge.
The defendant Andrew Skinner appeals a summary denial of his motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 in the Circuit Court for the Eleventh Judicial Circuit of Florida. We find no merit in the defendant’s contentions on this appeal save one. See: State v. Matera, 266 So. 2d 661 (Fla.1972); Clements v. State, 320 So. 2d 44 (Fla.3d DCA 1975); Phillips v. State, 313 So. 2d 428 (Fla.3d DCA 1975).
In our view, the defendant’s sentence of life imprisonment for unarmed robbery exceeded the statutory maximum for such crime as provided in Section 812.-13(2)(c), 775.082(3)(c), Florida Statutes (1975), and, therefore, such sentence should have been vacated and a new sentence imposed within the statutory maximum. The defendant was charged by information with unarmed robbery, found guilty thereof by a jury, and adjudged guilty based on the jury verdict. Specifically, the information charging the defendant with robbery contained no allegations that the robbery was committed with a “firearm”, “deadly weapon” or “weapon.” See: §§ 812.13(2)(a), (b), Fla.Stat. (1975). Under the authority of Chapola v. State, 347 So. 2d 762 (Fla.1st DCA 1977), the defendant was charged with and convicted of unarmed robbery as a second degree felony under Section 812.-13(2)(c), Florida Statutes (1975), and could only be sentenced to a maximum of fifteen years in the state penitentiary under Section 775.082(3)(e), Florida Statutes (1977).
The state contends that the defendant has waived this contention by failing to raise the issue when he originally appealed his conviction and sentence to this court in Skinner v. State, 344 So. 2d 343 (Fla.3d DCA 1977). We cannot agree. Fla. R.Crim.P. 3.850 specifically provides that a sentence may be vacated upon motion by a defendant when “in excess of the maximum authorized by law.” Moreover, it has long been held that a sentence not authorized by law is always subject to collateral attack under Fla.R.Crim.P. 3.850. McNamara v. State, 324 So. 2d 702, 703 (Fla.3d DCA 1975); Crusoe v. State, 183 So. 2d 600, 604 (Fla.2d DCA 1966).
We further reject the state’s contention that the issue herein is rendered irrelevant or moot because the defendant was also sentenced to life imprisonment on a burglary charge in the instant case, the sentences to run consecutively. We know of no circumstances under the law of this state which would ever authorize a trial court to sentence a defendant to a term of imprisonment in excess of the statutory maximum set for the crime for which the defendant stands convicted. Such an error is fundamental and jurisdictional in nature and can > never be considered irrelevant, moot or harmless. Butler v. State, 343 So. 2d 93 (Fla.3d DCA 1977); Williams v. State, 280 So. 2d 518 (Fla.3d DCA 1973).
The order under review is reversed and the cause remanded to the trial court with directions to vacate the sentence of life imprisonment imposed upon the defendant for the crime of unarmed robbery and to impose a proper sentence under the law. In all other respects, the order appealed from is affirmed.
Affirmed in part; reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984)…. That portion of Florida Rule of Criminal Procedure 3.850 which authorizes the review of sentences “in excess of the maximum authorized by law,” refers to a sentence which is above the legislative maximum for the prescribed crime. Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979). Since appellant complains of an error which is not of fundamental dimension and which could have been raised by way of appeal, it cannot now be asserted in a motion for post-conviction relief. The other grounds of appellant’s m…
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Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980)…of the ninety day sentence and the subsequent order of contempt. This is an appeal from the denial of that motion. A defendant may attack an illegal sentence by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Skinner v. State, 366 So. 2d 486 (Fla.3d DCA 1979). Therefore, we must decide whether the court could legally impose an intermittent sentence. There is nothing in our statutes which purports to authorize an interrupted sentence. While there are no Florida decisions directly on poi…
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Sanders v. State, 386 So. 2d 256 (Fla. 5th DCA 1980)…iminal Procedure, clearly states that a motion for post-conviction relief may assert that the sentence imposed was in excess of the maximum authorized by law. A sentence not authorized by law is always subject to collateral attack. Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979). Since the indictment did not charge that appellant was armed with either a firearm, a deadly weapon or a weapon, he could only be found guilty of a second-degree felony under Section 812.13, Florida Statutes (Supp.1974) and he s…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Matera, 266 So. 2d 661 (Fla. 1972)
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)
- Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)
- Phillips v. State, 313 So. 2d 428 (Fla. 3d DCA 1975)
- Butler v. State, 343 So. 2d 93 (Fla. 3d DCA 1977)
- Blaine Archer Chapola v. State, 347 So. 2d 762 (Fla. 1st DCA 1977)
- McNAMARA v. State, 324 So. 2d 702 (Fla. 3d DCA 1975)