DUC CONG NGUYEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court vacated a youthful offender sentence as technically excessive because the trial court imposed a four-plus-two sentence on each of two third-degree felonies, violating the statutory cap that no commitment shall exceed the maximum sentence for the offense of conviction.
A youthful offender sentence is excessive when the trial court imposes the four-plus-two formula on each of multiple offenses, as the commitment cannot exceed the maximum sentence for any individual offense of conviction.
[1] A youthful offender commitment under Florida law cannot exceed the maximum sentence for the offense of conviction, even when the four-plus-two formula is imposed on multi…
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Join FLexlaw to unlock all legal intelligenceAppellant, a qualified youthful offender under age twenty-one, was sentenced for two third-degree felonies, each carrying a maximum of five years impr…
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PER CURIAM.
This is an appeal from a sentence.
Qualified persons under age twenty-one may receive alternative sentencing treatment under Chapter 958, which sets the criteria for youthful offender treatment and limits the period of incarceration to four years maximum. In addition, the sentencing court can impose two years probation or community service to commence after release from incarceration. § 958.04(2)(c), Fla.Stat. Appellant was sentenced for two third degree felonies, each of which carries a maximum of five years imprisonment. Because he was given the youthful offender “four plus two” on each sentence, albeit to run concurrently, the sentences were technically excessive. Section 958.04(2)(d), Florida Statutes says:
The court may commit the youthful offender to the custody of the department for a period of not more than 6 years, provided that any such commitment shall not exceed the maximum sentence for the offense for which the youthful offender has been convicted. [emphasis supplied].
The sentencing court can impose virtually the same punishment by giving appellant consecutive sentences, neither of which exceeds the “four plus two” youthful offender formula. Under Allen v. State, 526 So. 2d 69 (Fla.1988), the court cannot exceed the six-year cap, no matter how many sentences are imposed at the time he is sentenced. We vacate the sentence and remand for resentencing.
SENTENCE VACATED; REMANDED.
DAUKSCH, GOSHORN and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Aundray Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999)…e youthful offender limitation. Cf. Schebel v. State, 721 So. 2d 1177 (Fla. 1st DCA 1998), appeal dismissed, 723 So. 2d 830 (Fla.1999), (consecutive youthful offender sentences exceeding applicable maximum of six years are illegal); Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990) (sentencing court can impose any youthful offender sentence, so long as no matter how many sentences are imposed, the total does not exceed the four years incarceration followed by two years probation or community control allowed…
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Lampkins v. State, 798 So. 2d 883 (Fla. 4th DCA 2001)…of probation. In his rule 3.800(a) motion to correct sentence, he argues that the incarcerative portion exceeds the statutory maximum of four years of imprisonment provided by section 958.04(2)(c), Florida Statutes (2000). See also Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990)(noting that chapter 958 limits the period of incarceration in youthful-offender sentences to four years maximum). We agree and reverse the circuit court’s order denying appellant’s rule 3.800(a) motion. The State argues that bec…
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McKEE v. State, 844 So. 2d 816 (Fla. 5th DCA 2003)…ded that any such commitment shall not exceed the maximum sentence for the offense for which the youthful offender has been convicted.” In the instant case, McKee should have received no more than five years for each conviction. In Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990), in circumstances similar to the instant case, we reversed concurrent sentences of four years incarceration followed by two years supervision for two third-degree felonies, in light of section 958.04(2)(d). We noted that the tria…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allen v. State, 526 So. 2d 69 (Fla. 1988)