LONNIE WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lonnie Ward appealed his sentencing following a nolo contendere plea to attempted first-degree murder. The court imposed a 10-year sentence with a 3-year minimum mandatory term plus life probation and various costs. The appeal addresses whether life probation impermissibly extends the total sentence beyond statutory maximums and whether costs can be assessed without notice and opportunity to object.
The court held that under section 775.082(3)(a), once a trial judge sentences a defendant to a term of years rather than life imprisonment, the total sentence including any probationary period must not exceed 40 years. The court also held that before costs may be assessed, the state must provide the defendant adequate notice and an opportunity to object.
[1] A total sentence, including incarceration and probation, for a life felony committed after October 1, 1983, cannot exceed 40 years when the sentence is for a term of year…
[2] A defendant must be given adequate notice and an opportunity to object before costs can be assessed.
Previewing 2 of 3 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“combined periods of incarceration and probation at the time of the original sentence may not exceed the maximum period of incarceration provided by statute for the offense”
Establishes the core principle from State v. Holmes that governs the total sentence calculation
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Join FLexlaw to unlock all legal intelligenceWard was charged with kidnapping to inflict bodily harm with a firearm and attempted first-degree murder. He entered a plea agreement whereby he plead…
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ZEHMER, Judge.
Lonnie Ward was charged by information with kidnapping to inflict bodily harm with a firearm and attempted first-degree murder. Ward subsequently entered into a plea agreement with the state wherein, in exchange for his plea of nolo contendere to the first-degree murder charge, the state agreed to nolle prosequi the kidnapping charge and recommend a sentence of 10 years’ incarceration with a 3-year minimum mandatory sentence. Ward and the state further agreed to leave probation to the court’s discretion.
Pursuant to the plea agreement, the court adjudicated Ward guilty of attempted first-degree murder and sentenced him to 10 years’ incarceration with a 3-year minimum mandatory sentence, gave him 408 days credit for time served, and placed him on probation for life. The court further imposed $200.00 in court costs, and ordered Ward to pay $20.00 to the Crime Compensation Trust Fund and $5.00 to the Law Enforcement Education Trust Fund. Ward appeals the sentence alleging that the court erred in imposing life probation, and in imposing costs without affording him notice and an opportunity to object.
We reverse on both points.
In State v. Holmes, 360 So. 2d 380 (Fla.1978), the supreme court held that combined periods of incarceration and probation at the time of the original sentence may not exceed the maximum period of incarceration provided by statute for the offense. 360 So. 2d at 383. The maximum period of incarceration provided by statute for the offense in this case was imprisonment for life or imprisonment not exceeding 40 years. § 775.082(3)(a), Florida Statutes (1987).
Section 775.082(3)(a) has been interpreted to prohibit a court from sentencing a defendant for a life felony committed after October 1, 1983, to a term of incarceration for a period of years exceeding 40. Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988). The question raised in this case is whether section 775.082(3)(a) also disallows a sentence where the combined periods of incarceration and probation exceed 40 years. The law is well established that “a penal statute must be strictly construed in favor of those against whom it would operate.” State v. Holmes, 360 at 383.
Thus, we hold that once the trial judge sentences a defendant under section 775.082(3)(a) to a term of years as opposed to. a term of imprisonment for life, the total sentence, including any probationary period, must not exceed 40 years.
We reverse the portion of Ward’s sentence placing him on probation for life, and remand the case with directions to resentence Ward to a period of probation not greater than 30 years.
With regard to the second point, before costs may be assessed pursuant to sections 960.20, 943.25, and 27.3455, Florida Statutes, the state must provide the defendant with adequate notice and an opportunity to object to the assessment. Raulerson v. State, 544 So. 2d 338 (Fla. 1st DCA 1989); Moore v. State, 530 So. 2d 61, 64 (Fla. 1st DCA 1988); see also Wood v. State, 544 So. 2d 1004 (Fla.1989). Since Ward did not receive notice regarding any of the costs imposed, we reverse the trial court’s assessment of costs without prejudice to the state to seek reassessment upon proper notice and an opportunity to be heard. Smith v. State, 548 So. 2d 305 (Fla. 1st DCA 1989); Collins v. State, 546 So. 2d 123 (Fla. 1st DCA 1989); Raulerson, 544 So. 2d 338.
REVERSED AND REMANDED.
THOMPSON and BARFIELD, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dyer v. State, 629 So. 2d 285 (Fla. 5th DCA 1993)…tchell v. State, 573 So. 2d 446 (Fla. 2d DCA 1991). The reason probation can not exceed 25 years is that the combined sentence must fall within the statutory maximum of 40 years. See Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993); Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990). The fact that his sentence was the result of a valid plea agreement does not make the sentence imposed a legal sentence. The trial court cannot impose an illegal sentence even if the sentence is pursuant to a valid plea agreemen…
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Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)…ommitted after October 1, 1983, once the trial court sentences a defendant under section 775.-082(3)(a), Florida Statutes, to a term of years as opposed to a term of imprisonment for life, the term of years cannot exceed 40. See also, Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990); Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988). As the unarmed kidnapping offense was a first degree felony punishable by imprisonment for a term of years not exceeding life, the court held the 99 year sentence was proper.…
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Bennie Lee Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992)…offender statute in pari materia with section 775.082(3)(a), we conclude that once the trial court determined defendant should be sentenced to a term of years, forty years was the maximum term of years permitted under the statute. See Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990); see also Howe v. State, 596 So. 2d 1227 (Fla. 2d DCA 1992). Also, the fifteen-year mandatory minimum cannot be imposed because, as stated in Lamont, subsections 775.084(4)(a) and (b) do not apply to life felonies. Lamont, 597 So…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Wood v. State, 544 So. 2d 1004 (Fla. 1989)
- Moore v. State, 530 So. 2d 61 (Fla. 1st DCA 1988)
- Collins v. State, 546 So. 2d 123 (Fla. 1st DCA 1989)
- Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988)
- Raulerson v. State, 544 So. 2d 338 (Fla. 1st DCA 1989)
- Smith v. State, 548 So. 2d 305 (Fla. 1st DCA 1989)