JAMES RICHARD ZIMMERMAN, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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Zimmerman was convicted of trafficking in cannabis and received a five-year sentence with a mandatory three-year minimum, but the trial court failed to impose the mandatory $25,000 fine required by statute. The State cross-appealed the illegal sentence, and the appellate court remanded for resentencing to ensure the mandatory fine was imposed.
The sentence was illegal for failure to impose the mandatory $25,000 fine. The State properly cross-appealed the illegal sentence, and the court's jurisdiction over the cross-appeal was not affected by Zimmerman's voluntary dismissal of his direct appeal. The case was remanded for resentencing to impose the mandatory fine unless the State filed a motion for substantial assistance mitigation.
[1] A voluntary dismissal of an appeal does not affect proceedings on a cross-appeal.
[2] A state may appeal an illegal sentence.
Previewing 2 of 5 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“Section 893.135(l)(a)l, Florida Statutes, imposes a mandatory $25,000 fine in addition to the imprisonment. The failure to impose that fine renders the sentence illegal.”
Establishes that the trial court's omission of the mandatory fine rendered the entire sentence illegal and subject to appellate correction.
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Join FLexlaw to unlock all legal intelligenceOn June 7, 1983, Zimmerman pleaded nolo contendere to trafficking in more than 100 pounds of cannabis. At the plea hearing, the Assistant State Attorn…
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SHIVERS, Judge.
Zimmerman appealed his conviction and sentence for trafficking in more than 100 pounds of cannabis in violation of section 893.135(l)(a)l, Florida Statutes. State cross-appealed the judgment of conviction for its failure to impose the minimum mandatory fine of $25,000 required by this statute. Zimmerman subsequently voluntarily dismissed his appeal. We resolve the cross-appeal in favor of the State and remand.
On June 7, 1983, Zimmerman offered to plead nolo contendere to violation of section 893.135(l)(a)l, Florida Statutes. At the hearing the trial court asked the Assistant State Attorney the amount of the statutory fine who responded that it was $10,-000. Zimmerman’s trial counsel agreed that $10,000 was the fine. In accepting the plea, the trial court informed Zimmerman the fine would be $10,000.
The Assistant State Attorney also requested that, pending a presentence investigation, Zimmerman be allowed to remain on bond during preparation of the presen-tence investigation. This would “enable the agency and the Department of Law Enforcement to work with our office to begin the evaluation of the assistance, toward substantial assistance.”
The judgment imposed a five-year sentence, mandatory three years, but failed to impose a fine.
We note that the voluntary dismissal of an appeal does not affect proceedings on cross-appeal. Fla.R.App.P. 9.850(b); and the State may appeal an illegal sentence. Fla.R.App.P. 9.140(c)(l)(I).
Section 893.135(l)(a)l, Florida Statutes, imposes a mandatory $25,000 fine in addition to the imprisonment. The failure to impose that fine renders the sentence illegal. Cf Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978) (20 years imposed when 30 years was the statutory minimum sentence), Pruitt v. State, 403 So. 2d 988 (Fla. 2d DCA 1980) ($5,000 fine imposed where $1,000 fine was maximum allowed).
Notwithstanding the mandatory language of section 893.135(l)(a)l, Florida Statutes, a violator who renders substantial assistance may, upon a motion from the State, receive a reduced or suspended sentence pursuant to section 893.135(3), Florida Statutes:
(3) The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.
Although mention of an opportunity to render substantial assistance is made, the record contains no motion to mitigate by the State. “The statutory language is clear. The court may mitigate ... only when the State represents that defendant has rendered substantial assistance....” Campbell v. State, 453 So. 2d 525, 526 (Fla. 5th DCA 1984).
There appearing no motion to mitigate the fine, the case is REMANDED for re-sentencing.
SMITH and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Fulton, 878 So. 2d 485 (Fla. 1st DCA 2004)…r an appeal by the state from an illegal sentence. See § 924.07(1)(e), Fla. Stat. (2001); Fla.R.App.P. 9.140(c)(1)(K). A sentence that does not impose the minimum punishment required by law is regarded as an illegal sentence. See Zimmerman v. State, 467 So. 2d 1119 (Fla. 1st DCA 1985); State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982); State v. Senich, 543 So. 2d 804 (Fla. 4th DCA 1989); State v. Row, 478 So. 2d 430 (Fla. 5th DCA 1985). In this case, the state charged the defendant with trafficking in violat…
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State v. Smith, 601 So. 2d 263 (Fla. 1st DCA 1992)…argument were to prove correct, the sentences imposed by the trial court would be illegal. Section 924.07(1)(e), Florida Statutes (1989), permits the state to challenge a sentence "on the ground that it is illegal.” See generally Zimmerman v. State, 467 So. 2d 1119 (Fla. 1st DCA 1985). . In its entirety, Section 775.087(2)(a), Florida Statutes (1989), reads: (2)(a) Any person who is convicted of: 1. Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, esc…
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State v. Fedor, 714 So. 2d 526 (Fla. 5th DCA 1998)…32. A cross-appeal can continue after the main appeal has been dismissed if the cross-appeal could have been appealed on its own merits, independent of the of the main appeal. State v. Smith, 557 So. 2d 904 (Fla. 1st DCA 1990); Zimmerman v. State, 467 So. 2d 1119 (Fla. 1st DCA 1985); see also Fla. R.App. P. 9.350(b). In Smith and Zimmerman, the state was allowed to continue an appeal after the defendant dismissed the main appeal. As mentioned previously, as a defendant, Fedor had no independent right to appe…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ulysses R. Kelly, Jr. v. State, 359 So. 2d 493 (Fla. 1st DCA 1978)
- Campbell v. State, 453 So. 2d 525 (Fla. 5th DCA 1984)
- Pruitt v. State, 403 So. 2d 988 (Fla. 2d DCA 1980)