TERRELL RAY WATSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the three-year sentence for conspiracy to sell cannabis was illegal because the offense is a first-degree misdemeanor punishable by a maximum of one year imprisonment.
Appellant was convicted of conspiracy to sell cannabis and trafficking in cannabis. The trial court imposed a three-year sentence for the conspiracy o…
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BOARDMAN, Acting Chief Judge.
Appellant Terrell Ray Watson challenges the length of his three-year sentence for conspiracy to sell cannabis. We agree that the sentence is excessive, and we therefore reverse.
Appellant was charged with conspiracy to traffic in cannabis, in violation of sections 777.04(4)(b) and 893.135(l)(a), Florida Statutes (1981), (Count I) and with trafficking in cannabis (Count II). He was tried by jury and convicted of conspiracy to sell cannabis, in violation of sections 777.-04(4)(d) and 893.13(l)(a)2, a lesser included offense of the offense charged in Count I, and trafficking in cannabis as charged in Count II. The trial court adjudicated him guilty in accordance with the jury verdict. However, the written judgment incorrectly lists conspiracy to sell cannabis as a second-degree felony, and appellant was sentenced to three years for this offense.
Conspiracy to sell cannabis is only a first-degree misdemeanor, §§ 893.13(l)(a)2, 893.-03(l)(c)3, 777.04(4)(d), which is punishable by imprisonment for a maximum of one year. § 775.082(4)(a). Thus the three-year sentence imposed for this offense is illegal and must be reversed despite appellant’s failure to object below. Lawson v. State, 400 So. 2d 1053 (Fla.2d DCA 1981); Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981).
Accordingly, appellant’s conspiracy sentence is vacated and the cause remanded for imposition of a legal sentence and correction of the designation of the degree of this crime on the judgment. No other error being raised by appellant or apparent to this court, the judgment and sentence on Count II are affirmed.
GRIMES and DANAHY, JJ., concur.
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Weller v. State, 501 So. 2d 1291 (Fla. 4th DCA 1986)…lorida Standard Jury Instructions does not list or discuss conspiracy. However, the failure of the Instructions to contain a provision for conspiracy does not alter the right of the defendant to the requested charge. For example, in Watson v. State, 426 So. 2d 1300 (Fla. 2d DCA 1983) the defendant was charged with conspiracy to traffic and was convicted of the lesser included offense of conspiracy to sell cannabis. Although the State argues that an instruction as to lesser included offenses should not be give…
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Forshee v. State, 579 So. 2d 388 (Fla. 2d DCA 1991)…sible, the total sanction cannot exceed the maximum term provided by statute. Saint v. State, 562 So. 2d 866 (Fla. 3d DCA 1990). Further, because the sentence is illegal it must be reversed despite the appellant’s failure to object, Watson v. State, 426 So. 2d 1300 (Fla. 2d DCA 1983), and the sentence having been imposed as a result of plea negotiations. Griner v. State, 524 So. 2d 487 (Fla. 2d DCA 1988). If the trial court had imposed this sentence after a trial, or if the appellant had pled guilty without h…
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LEE v. State, 619 So. 2d 1016 (Fla. 3d DCA 1993)…777.04(4)(b), 893.135(1)(b)1 a, Fla.Stats. (1991). Accordingly, we reverse the conviction and remand the judgment to the trial court, to be corrected to reflect the conviction for conspiracy to traffic as a second degree felony. See Watson v. State, 426 So. 2d 1300 (Fla. 2d DCA 1983). As for the remaining points raised by the defendant in this appeal, we find that they lack merit.…
Authorities Cited
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Lawson v. State, 400 So. 2d 1053 (Fla. 2d DCA 1981)