LUKE INCLIMA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Luke Inclima challenged his sentencing following a plea bargain for sexual battery and lewd assault charges. The Florida Fifth District Court of Appeal affirmed the convictions and the sentence for the first-degree felony but reversed the sentences for the four second-degree felonies and the imposition of court costs, finding they exceeded statutory maximums and lacked proper procedural safeguards.
The combined penalties of incarceration and probation for the second-degree felonies violated the statutory maximum of fifteen years and must be reversed and remanded for resentencing. The imposition of $225 in court costs without notice and opportunity to object was improper and must be stricken, though the court may reimpose costs upon remand with proper procedures.
[1] A combined sentence of incarceration and probation for a second-degree felony cannot exceed the statutory maximum sentence for that felony.
[2] Imposing a sentence that exceeds the statutory maximum for a second-degree felony is illegal.
Previewing 2 of 6 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“the combined penalty of twenty years for each of the four second degree felonies is illegal”
Establishes that combined incarceration and probation terms cannot exceed the statutory maximum of fifteen years for second-degree felonies.
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Join FLexlaw to unlock all legal intelligencePursuant to a plea bargain, Inclima was sentenced to twelve years incarceration followed by eight years probation for each of five counts: one count o…
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DAUKSCH, Judge.
Pursuant to a plea bargain, defendant was sentenced to twelve years incarceration followed by eight years probation for each of five counts, including one count of sexual battery, a first degree felony, two counts of lewd assault and two counts of committing lewd acts in the presence of a child, all second degree felonies. The statutory maximum sentence for a second degree felony is fifteen years, § 775.082(3)(e), Fla.Stat. (1989). Therefore the combined penalty of twenty years for each of the four second degree felonies is illegal. See, e.g., Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990) (total penalty of probation and incarceration cannot exceed statutory maximum); Johnson v. State, 533 So. 2d 927 (Fla. 5th DCA 1988) (sentence of three months incarceration followed by five years probation is illegal sentence since combined term exceeds statutory maximum sentence of five years for third degree felony); Stamper v. State, 528 So. 2d 1323 (Fla. 5th DCA 1988) (sentence of seven years incarceration followed by ten years probation exceeds fifteen year statutory maximum for second degree felony).
The state’s argument that the sentences for the second degree felonies are mere “surplusage” since they are to be served concurrently with the sentences for the first degree felony is flawed. General sentences have been prohibited in Florida since Dorfman v. State, 351 So. 2d 954 (Fla. 1977), and under the state’s reasoning, the penalty imposed in this case would constitute an improper general sentence. Cf. Johnston v. State, 564 So. 2d 1237 (Fla. 5th DCA 1990) (sentence of life for one count of sexual battery and three counts of lewd assault impermissible general sentence).
The court also improperly imposed court costs of $225 without giving the de fendant notice or an opportunity to object. See Harriel v. State, 520 So. 2d 271 (Fla. 1988); Mays v. State, 519 So. 2d 618 (Fla. 1988); Jenkins v. State, 444 So. 2d 947 (Fla. 1984). The state argues that the affidavit of insolvency signed by the defendant gave sufficient notice that costs would be imposed because it included a statement that at sentencing the court would determine the value of the appointed attorney’s fees and costs and that defendant would have an opportunity to be heard. But see Bull v. State, 548 So. 2d 1103 (Fla.1989) (waiver of notice and opportunity to be heard contained in affidavit of insolvency insufficient).
Even assuming that the costs referred to in the affidavit of insolvency are not merely those imposed as part of the attorney’s costs under section 27.56, Florida Statutes (1989), and that the notice is sufficient to advise the defendant that court costs may be imposed, the defendant in this case never received an opportunity to object, since costs were never mentioned at sentencing. Compare Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989) (costs affirmed where defendant was notified that costs would be imposed during sentencing). Accordingly, the costs must be stricken, although upon remand after proper notice and an opportunity to be heard, the court may reimpose the costs.
The convictions are affirmed, as is the sentence for the first degree felony. The sentences for the four second degree felonies are reversed and remanded for sentencing within the statutory maximum.
AFFIRMED IN PART; REVERSED IN PART.
HARRIS and GRIFFIN, JJ., concur.
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Parks v. State, 765 So. 2d 35 (Fla. 2000)…error: (1) the use of a general sentence in case numbers 94-86 and 95-486, which include more than one count in violation of Carter v. State, 689 So. 2d 455 (Fla. 5th DCA 1997), Cruz v. State, 674 So. 2d 802 (Fla. 3d DCA 1996), and Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990); (2) his sentences of twelve years’ probation exceed the statutory maximum for third-degree felonies; and (3) when imposing a new sentence after revoking probation, the court failed to credit his probationary sentence with the ti…
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Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997)…s a second degree felony, and thus the sentence is within the maximum statutory time allowable, even when combining the prison term with the probationary term. However, that does not render the sentence discussed above “legal”. See Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990). We affirm Ortiz’ convictions for both criminal offenses and the sentence for the second degree felony; but we quash the sentence for the third degree felony and remand for entry of a legal sentence. AFFIRMED in part; QUASH sen…
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Munoz v. State, 218 So. 3d 459 (Fla. 5th DCA 2017)…2) argue that certain of the sentences exceed the statutory maximum. The State properly concedes that the defendant was entitled to receive relief on both claims. The sentence on all the counts is an illegal general sentence. See Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990) (finding sentence of twelve years’ incarceration followed by eight years’ probation to be a prohibited general sentence and in [*460] excess of statutory maximum where total time exceeded statutory maximum where counts involved c…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Harriel v. State, 520 So. 2d 271 (Fla. 1988)
- Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990)
- Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989)
- Stamper v. State, 528 So. 2d 1323 (Fla. 5th DCA 1988)
- Johnson v. State, 533 So. 2d 927 (Fla. 5th DCA 1988)
- Johnston v. State, 564 So. 2d 1237 (Fla. 5th DCA 1990)