THERION FRIERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Therion Frierson appealed the denial of his motion to reduce his sentence from 10 years to the guideline range of 2.5-3.5 years for burglary. The court held that the habitual offender statute was repealed by implication when Florida enacted sentencing guidelines, making Frierson's 10-year sentence illegal, and reversed and remanded for resentencing.
The court held that the habitual offender statute was repealed by implication when sentencing guidelines were enacted, making the maximum legal sentence for Frierson's offense five years rather than ten years. The trial court erred in summarily denying the motion to correct this illegal sentence, and Rule 3.800(a) permits correction of illegal sentences at any time. On remand, departure from guidelines based solely on habitual offender status is not permitted, though departure may be available under other appropriate circumstances.
[1] A motion to correct an illegal sentence may be filed at any time.
[2] The habitual offender statute was repealed by implication with the enactment of sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“In Whitehead the Florida Supreme Court held that, in view of the sentencing guidelines, the habitual offender statute (§ 775.-084) is no longer viable — i.e., it was repealed by implication.”
Establishes the legal foundation for Frierson's claim that his sentence enhancement was invalid
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Join FLexlaw to unlock all legal intelligenceFrierson was convicted in 1985 of burglary of a structure, a third-degree felony with a statutory maximum of five years. The trial judge sentenced him…
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COBB, Judge.
The defendant, Frierson, was convicted in 1985 of burglary of a structure, and sentenced to a term of ten years, the trial judge departing from the guidelines based on a finding that Frierson was an habitual offender. He appealed that conviction but not the sentence, and there was an affirmance by this court in March, 1986. In November, 1986, Frierson filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a)1 to reduce his sentence to conform to the guideline range of two-and-a-half to three-and-a-half years. The motion specifically relied upon the Florida Supreme Court case of Whitehead v. State, 498 So. 2d 863 (Fla.1986). That motion was summarily denied by the trial judge on November 25,1986, and this appeal ensued.
In Whitehead the Florida Supreme Court held that, in view of the sentencing guidelines, the habitual offender statute (§ 775.-084) is no longer viable — i.e., it was repealed by implication. See Whitehead v. State, 498 So. 2d 863, 867 (Fla.1986) (Overton, J., dissenting). See also Bass v. State, 12 FLW 289 (Fla. June 11, 1987).2 Since section 775.084 was repealed by enactment of the guidelines as of October 1, 1983, the maximum legal sentence which could have been imposed upon Frierson in 1985 was five years, not ten years.3 Rule 3.800(a) is available at any time to correct an illegal sentence, and the trial court erred in its summary denial of Frierson’s motion.
Upon remand for resentencing, the trial court may not enter a departure sentence in excess of five years, and may not depart from the guidelines at all based merely on a simple finding that Frierson is “an habitual offender.” Departure may be available in this case, however, if requisite findings are made in conformity with Williams v. State, 504 So. 2d 392 (Fla.1987). See Brockington v. State, 506 So. 2d 495 (Fla. 5th DCA 1987).
REVERSED and REMANDED for re-sentencing.
UPCHURCH, C.J., and SHARP, J., concur. . The rule provides:
A court may at any time correct an illegal sentence imposed by it....
. But see McCuiston v. State, 12 FLW 1357 (Fla. 2nd DCA May 29, 1987); Kiser v. State, 505 So. 2d 9 (Fla. 1st DCA 1987).
.Frierson was convicted of burglary of a structure, which is a third-degree felony carrying a statutory maximum penalty of five years’ imprisonment. §§ 810.02(3), 775.082(3)(d), Fla. Stat. (1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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King v. State, 511 So. 2d 1131 (Fla. 4th DCA 1987)…. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987); Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987); Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986); Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986). The lone exception is Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987). That court believed that Whitehead held the habitual offender statute was no longer viable as it had been repealed by implication. The Winters court certified the following question to the Supreme Court of Florida, and we join…
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Kersey v. State, 515 So. 2d 261 (Fla. 5th DCA 1987)…da Rule of Criminal Procedure 3.850. We find no merit to Kersey’s first five points, but with regard to the challenge of the legality of his 30-year sentence, we vacate the sentence and remand for resentencing, on the authority of Frierson v. State, 511 So. 2d 1016, (Fla. 5th DCA, 1987). Kersey was convicted on March 28, 1985 of committing a lewd act in the presence of a child.1 That offense is a second degree felony, with a statutory maximum sentence of 15 years.2 Because of his prior record, and being on pa…
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Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)…1987); Brewer v. State, 502 So. 2d 1367 (Fla. 2d DCA 1987); Donahue v. State, 502 So. 2d 57 (Fla. 2d DCA 1987); Beahn v. State, 502 So. 2d 15 (Fla. 2d DCA 1986). The same also appears to be true with regard to the Fifth District. Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987). Only the Third District, without specifically addressing the issue, has held that, in such a case, the sentence on remand must be within the Guidelines. Deliford v. State, 505 So. 2d 523 (Fla. 3d DCA 1987); Albury v. State, 503…
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
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987)
- Brockington v. State, 506 So. 2d 495 (Fla. 5th DCA 1987)
- Kiser v. State, 505 So. 2d 9 (Fla. 1st DCA 1987)