WILLIAM HENRY CLEVELAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's sentence of ten years for attempted armed burglary, a third-degree felony with a five-year maximum, was illegal, so the court vacated the plea and sentence and reinstated dismissed counts, allowing the state thirty days to accept a reduced legal sentence or proceed to trial.
A sentence exceeding the statutory maximum for a third-degree felony is illegal and must be vacated even when imposed pursuant to a negotiated plea.
[1] A sentence imposed pursuant to a negotiated plea that exceeds the statutory maximum for the offense is illegal and subject to vacation under Florida Rule of Criminal Proc…
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Join FLexlaw to unlock all legal intelligenceCleveland negotiated a plea and sentence with the state in exchange for dismissal of other counts. He was sentenced to ten years imprisonment for atte…
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COBB, Judge.
The appellant, as the defendant below, negotiated a plea and sentence before the trial court in return for the dismissal by the state of other counts against him. He then challenged the sentence as illegal pursuant to Florida Rule of Criminal Procedure 3.850. He was sentenced to ten years imprisonment for attempted armed burglary, a third-degree felony with a maximum term of five years. State v. Sudol, 357 So. 2d 761 (Fla. 4th DCA 1978). Therefore, the negotiated sentence is illegal.
In accordance with our opinion in Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981), we vacate the plea, the judgment and sentence, and reinstate the dismissed counts; provided, however, if the state should exercise its option to accept the plea with the sentence reduced to a legal term, then the other counts shall again be dismissed and the plea and the judgment shall stand as the predicate for a new sentence consistent with Florida law. See §§ 777.04(4)(c) and 775.-082(3)(d), Fla.Stat. The affirmative exercise of the option to accept the plea accompanied by a legal sentence shall be exercised by the state before the trial court within thirty (30) days of the issuance of the mandate herein; otherwise, the case returns to its status before the original plea bargain.
REVERSED and REMANDED for further proceedings consistent with this opinion.
DAUKSCH, C. J., and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Forbert v. State, 437 So. 2d 1079 (Fla. 1983)…erstanding that the sentence he or she receives in exchange is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence. Cleveland v. State, 394 So. 2d 230 (Fla. 5th DCA 1981); Britt v. State, 352 So. 2d 148 (Fla. 2d DCA 1977). In Cleveland and Britt the defendants agreed to serve sentences exceeding the maximum sentences authorized for the crimes to which they pled guilty. Reasoning that the defendant…
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Campbell v. State, 453 So. 2d 525 (Fla. 5th DCA 1984)…ot comport with the statute, there was no legal basis for it, and thus the plea bargain was a nullity. Defendant’s motion for leave to withdraw the plea should have been granted. See, Forbert v. State, 437 So. 2d 1079 (Fla.1983); Cleveland v. State, 394 So. 2d 230 (Fla. 5th DCA 1981); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). The judgment of conviction and sentence are reversed and the cause is remanded with directions to vacate the plea and for further proceedings consistent herewith. REVERSED and…
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Peak v. State, 399 So. 2d 1043 (Fla. 5th DCA 1981)…a trial and conviction, here it resulted from a plea bargain and we cannot give the appellant relief from his bargain without also offering the state the same relief. See Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA [*1044] 1981); Cleveland v. State, 394 So. 2d 230 (Fla. 5th DCA 1981). Villery does not address negotiated split sentences which are otherwise within the limits prescribed by law. Because the sentence and the plea are intertwined,2 the appellant must seek his relief, if any, from the trial court u…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- State v. Sudol, 357 So. 2d 761 (Fla. 4th DCA 1978)
- Atl. Plaza P'ship v. Daytona Sands, Inc., 357 So. 2d 761 (Fla. 1st DCA 1978)