JAY MCMULLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed Jay McMullen's sentence for attempted sexual battery because the trial court imposed a sentence exceeding the statutory maximum of 30 years and imposed costs without notice or a hearing.
The sentence of 50 years imprisonment and 10 years probation consecutively exceeded the statutory maximum of 30 years for each count of attempted sexual battery upon a child and is vacated. Additionally, the imposition of Trust Fund costs without notice or a hearing constitutes reversible error.
[1] A sentence imposed beyond the statutory maximum is reversible error.
[2] A plea agreement can constitute a valid reason for an upward departure in sentencing, even if not explicitly stated as a written reason for departure.
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Join FLexlaw to unlock all legal intelligence“the appellant's sentence, fifty (50) years imprisonment and ten (10) years probation, consecutively, was beyond the statutory maximum of thirty (30) years for each count of attempted sexual battery upon a child”
The State conceded the sentence exceeded the statutory maximum, establishing the primary basis for reversal.
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Join FLexlaw to unlock all legal intelligenceMcMullen was charged with three counts of sexual battery on May 15, 1989. He pleaded guilty to three counts of attempted sexual battery pursuant to a …
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PER CURIAM.
We reverse the appellant’s sentence and remand for resentencing because the appellant was sentenced beyond the statutory maximum and costs were imposed without notice or a hearing.
The appellant, Jay McMullen, was charged with three counts of sexual battery on May 15, 1989. McMullen plead guilty to three counts of attempted sexual battery and entered into a plea agreement on that same date. The plea agreement included a sentence of fifty (50) years in Florida State Prison followed by ten years probation with special conditions. The appellant stipulated to the upward departure in sentence. In exchange, the State reduced the charge from three counts of sexual battery upon a child to three counts of attempted sexual battery upon a child pursuant to § 777.04(4)(a), Florida Statutes (1989). On September 1, 1989, the appellant was sentenced to fifty (50) years in prison to be followed by ten (10) years of probation for each count. The appellant timely filed an appeal of the sentence.
The State concedes that the appellant’s sentence, fifty (50) years imprisonment and ten (10) years probation, consecutively, was beyond the statutory maximum of thirty (30) years for each count of attempted sexual battery upon a child. The sentence is thus, vacated and remanded for resentencing pursuant to Florida Statutes, § 794.011(2) and § 777.04(4)(a).
The failure to file written reasons for an upward departure sentence, in the present case, does not constitute reversible error. A plea bargain can constitute valid reason for upward departure in sentencing. Quarterman v. State, 527 So. 2d 1380 (Fla. 1988) As it has been stated, “it would be better form to state the negotiated plea as the written reason for departure, the plea is in the record and it alone justifies the enhanced penalty.” Smith v. State, 553 So. 2d 748 (Fla. 5th DCA 1989).
The present record reveals that the trial court imposed sentence against the defendant on September 1, 1989 subsequent to a hearing. There was no mention of the imposition of costs at that time. The imposition of Trust Fund costs were set out in the Final Judgment in the amount of $250.00. The trial court is hereby reversed and this cause remanded due to the imposition of costs without notice or a hearing. Nash v. State, 547 So. 2d 147 (Fla. 4th DCA 1989); Patchin v. State, 544 So. 2d 282 (Fla. 4th DCA 1989).
The appellant’s sentence is reversed and remanded for resentencing.
REVERSED AND REMANDED FOR RESENTENCING.
ANSTEAD, GUNTHER and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 573 So. 2d 165 (Fla. 4th DCA 1991)…ement was not set forth in writing as the basis for the departure sentence, it was clearly evident from the record that this was the case. As a result, the departure sentence was adequately supported by the plea-bargain agreement. McMullen v. State, 570 So. 2d 1032 (Fla. 4th DCA 1990); Casmay v. State, 569 So. 2d 1351 (Fla. 3d DCA 1990). Accordingly, the departure sentence appealed from is affirmed. DOWNEY, POLEN and GARRETT, JJ., concur.…
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McMULLEN v. State, 631 So. 2d 1126 (Fla. 4th DCA 1994)…nced to fifty years in prison and ten years of probation on each of the counts of which he was convicted, the sentences to run concurrently. Because his sentence as originally imposed exceeded the statutory maximum, we reversed in McMullen v. State, 570 So. 2d 1032 (Fla. 4th DCA 1990). Appellant was resenteneed upon remand to a thirty year prison term on Count I, to twenty years on Count II, and to ten years probation on Count III, but with these sentences to run consecutively. This prompted the present appe…
Authorities Cited
- THE Florida BAR v. Mullins, 527 So. 2d 1380 (Fla. 1988)
- Smith v. State, 553 So. 2d 748 (Fla. 5th DCA 1989)
- Patchin v. State, 544 So. 2d 282 (Fla. 4th DCA 1989)
- Nash v. State, 547 So. 2d 147 (Fla. 4th DCA 1989)