KENNETH A. SHIEDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Shieder appealed his convictions for simple assault, burglary, and battery. The appellate court affirmed the convictions and the 15-year sentence for burglary, but reversed the sentences imposed on the assault and battery convictions because they exceeded the maximum punishments allowed by law for those misdemeanors.
The court affirmed the convictions and the sentence on Count II (burglary), but reversed and remanded the sentences on Counts I and III because the 15-year sentences on the assault and battery convictions exceeded the maximum allowable punishments by law and constituted fundamental sentencing errors.
[1] Written sentences that exceed the maximum punishment allowable by law for the offenses are fundamental sentencing errors and must be reversed.
[2] A trial court's written sentence imposing imprisonment for misdemeanor assault and battery that exceeds the statutory maximum punishment is illegal and must be reversed.
Previewing 2 of 6 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“the written sentences as to Counts I and III are not only contrary to the trial court's pronouncement in open court but exceed the maximum punishment allowable by law for those offenses and, being fundamental sentencing errors, are reversed”
Establishes that sentences exceeding statutory maximums and contradicting oral pronouncements constitute fundamental sentencing errors requiring reversal.
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Join FLexlaw to unlock all legal intelligenceShieder was convicted of simple assault (Count I, a second-degree misdemeanor), burglary of a dwelling (Count II, a felony), and battery (Count III, a…
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COWART, Judge.
We affirm appellant’s convictions of simple assault under Count I, burglary of a dwelling under Count II and battery under Count III and his sentence as to Count II. At the sentencing hearing the trial court sentenced appellant to 15 years on Count II, burglary of a dwelling, but stated that a sentence on the assault and the battery was being withheld.1 However, the written sentences entered by the trial court not only sentenced appellant to 15 years confinement as to Count II, burglary of a dwelling, but also sentenced appellant to a concurrent 15 years imprisonment on Count I, the assault, and to a concurrent 15 years imprisonment on Count III, the battery.
The assault conviction under Count I is a misdemeanor of the second degree (§ 784.-011(2), Fla.Stat. (1981)) punishable under § 775.082(4)(b), Fla.Stat. (1981) by imprisonment not exceeding 60 days and under § 775.083(1)(e), Fla.Stat. (1981) by a fine not exceeding $500. The battery conviction under Count III is a misdemeanor of the first degree (§ 784.03(2), Fla.Stat. (1981)) punishable under § 775.082(4)(a), Fla.Stat. (1981) by imprisonment not exceeding one year and under § 775.083(1)(d), Fla.Stat. (1981) by a fine not exceeding $1,000.
Therefore the written sentences as to Counts I and III are not only contrary to the trial court’s pronouncement in open court but exceed the maximum punishment allowable by law for those offenses and, being fundamental sentencing errors, are reversed and the cause is remanded for resentencing on those two counts.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
DAUKSCH and COBB, JJ., concur. . In 1958 and 1959 it was held that the practice of withholding or suspending sentencing contravened section 948.01(4), Florida Statutes (1941), and was “improper” and “illegal.” Helton v. State, 106 So. 2d 79 (Fla.1958); Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958), cert. discharged, 110 So. 2d 7 (Fla.1959) cert. den., 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959).
However that practice while it has receded, continues to date. The practice of withholding sentencing also now appears to violate the legislative direction of Section 775.021(4), Florida Statutes, which became effective October 1, 1976. It has been held that although suspended and withheld sentences are illegal as case dispositions, the trial court, with limitations, retains jurisdiction to impose a lawful sen-fence. A lawful sentence, when imposed, may not exceed the period of maximum punishment computed from the date guilt was adjudicated. Smith v. State, 259 So. 2d 498 (Fla. 1st DCA 1972); Stallworth v. State, 237 So. 2d 328 (Fla. 1st DCA 1970), quashed, 251 So. 2d 847 (Fla.1970); Coleman v. State, 205 So. 2d 5 (Fla. 3d DCA 1967); Hunter v. State, 200 So. 2d 577 (Fla. 3d DCA 1967) cert. dismd., 204 So. 2d 212 (Fla.1967); Drayton v. State, 177 So. 2d 250 (Fla. 3d DCA 1965) cert. dismd., 181 So. 2d 348 (Fla.1966).
Section 775.14, Florida Statutes (1981), also provides that action to alter a withheld sentence must be taken within five years. See also Clark, Probation in the Criminal Courts of Florida, 14 U.Fla.L.Rev. 213, 218 (1961).
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Cited By (11 total)
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Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985)…pronouncement given by the court during the sentencing hearing reflected a one-year sentence, and where the statutory maximum sentence for that [*375] offense is one year. See Matson v. State, 445 So. 2d 1121 (Fla. 5th DCA 1984); Shied-er v. State, 430 So. 2d 537 (Fla. 5th DCA 1983); Byrd v. State, 388 So. 2d 1362 (Fla. 5th DCA 1980). It appears that this was a clerical error, and as the sentence exceeds the maximum allowable by law under section 316.1935, Florida Statutes (1983), we reverse the sentence and…
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Carr v. State, 528 So. 2d 406 (Fla. 5th DCA 1988)…an “illegal” sentence. After a court adjudicates a defendant guilty of a criminal offense, it must either sentence him or place him on probation. See, e.g., Phillips v. State, 455 So. 2d 656 (Fla. 5th DCA 1984) and the footnote to Shieder v. State, 430 So. 2d 537 (Fla. 5th DCA 1983) which gives the history of suspended or withheld sentences and cites the supreme court cases declaring them “improper” and “illegal.” The 32 year “withheld” portion of the sentence in this case, as interpreted and modified by the…
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Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)…e sentence of September 9, 1982. SENTENCE VACATED; CAUSE REMANDED. UPCHURCH, C.J., concurs. SHARP, J., concurs specially with opinion. . Fla.R.Crim.P. 3.701. . See, e.g., § 775.14, Fla.Stat. . See the cases cited in note 1 to Shieder v. State, 430 So. 2d 537 (Fla. 5th DCA 1983). . The phrase "the same offense” is as used in United States Constitution amendment V and Article I, Section 9, Florida Constitution. A defendant can constitutionally be sentenced a second time for "the same offense" only after…
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 (15 total)
- State v. Mussa C. Bateh, 110 So. 2d 7 (Fla. 1959)
- Mussa C. Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958)
- Helton v. State, 106 So. 2d 79 (Fla. 1958)
- Food Fair Stores S. Dade, Inc. v. Gregory, 177 So. 2d 250 (Fla. 3d DCA 1965)
- Hunter v. State, 200 So. 2d 577 (Fla. 3d DCA 1967)
- In re Citroen, 361 U.S. 826 (U.S. 1959)
- Joseph J. Brunetti Constr. Co., Inc. v. Gray, 361 U.S. 826 (U.S. 1959)
- Drayton v. State, 181 So. 2d 348 (Fla. 1966)
- Smith v. State, 259 So. 2d 498 (Fla. 1st DCA 1972)
- Stallworth v. State, 237 So. 2d 328 (Fla. 1st DCA 1970)