PHILLIP TROTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillip Trott appeals his sentence as a habitual violent felony offender for second degree murder and firearm possession. The court reversed, finding that the State failed to prove habitual violent felony status because the prior violent felony and the Texas offense did not satisfy the statutory requirements for such designation, though they did support a habitual offender classification.
The court held that the State failed to prove habitual violent felony offender status because the prior armed robbery conviction and the Texas theft conviction did not satisfy the statutory requirements. Although a plea bargain can support a departure sentence, it cannot authorize an illegal sentence. Trott must be resentenced to 27 years without the mandatory 15-year minimum.
[1] A plea agreement cannot support an illegal sentence, even if the defendant agrees to the sentence.
[2] An illegal sentence can be corrected without a contemporaneous objection.
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Establishes the fundamental principle that plea agreements cannot authorize courts to impose sentences that are illegal under the law.
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Join FLexlaw to unlock all legal intelligenceTrott entered a nolo contendere plea in exchange for a guideline sentence with habitual offender treatment. The guideline range was 12-17 years, but T…
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HARRIS, Judge.
Phillip Trott appeals his judgment and sentence as an habitual violent felony offender for second degree murder and possession of a firearm by a convicted felon committed on January 20, 1990. Appellant entered a plea of nolo contendere in exchange for a guideline sentence with habitual offender treatment.
Although the recommended guideline range was incarceration for 12-17 years, Trott agreed to a sentence of up to 27 years. At the sentencing hearing, the State introduced a certified conviction for armed robbery from Monroe County, Florida 1 and a certified conviction from Texas for theft of a motor vehicle.2 When asked if she wished to be heard on the evidence, defense counsel stated, “No, Your Honor, that was part of the plea agreement.” Based upon the evidence, the trial judge declared appellant to be an habitual violent felony offender. The trial judge sentenced appellant to incarceration for 27 years with a mandatory 15 years. Trott argues that since the State failed to prove that he was an habitual violent felony offender, the 15 year mandatory is an illegal sentence. We agree.
The State contends that Trott waived the factual determination that he was an habitual violent felony offender by agreeing to the sentence imposed. Although it appears that defense counsel may have agreed to such sentence, Trott, by his plea agreement, certainly did not. He agreed to 27 years in prison and to be adjudged an habitual offender, not an habitual violent felony offender. While it is well established that a plea bargain is a sufficient basis for a departure sentence (Quarterman v. State, 527 So. 2d 1380 (Fla.1988); Smith v. State, 530 So. 2d 304 (Fla.1988)) it will not support an illegal sentence. Williams v. State, 500 So. 2d 501 (Fla.1986), receded from on other grounds, Quarterman v. State, supra; see also Taylor v. State, 512 So. 2d 304 (Fla. 1st DCA 1987) (defendant may agree to departure, but cannot by agreement confer on court authority to impose illegal sentence). It is equally well established that an illegal sentence can be corrected without a contemporaneous objection. Whitfield v. State, 487 So. 2d 1045 (Fla. 1986).
Although the State’s evidence supports a finding of habitual felon status, it does not establish an habitual violent felon status because the previous violent felony was neither committed nor the offender released from confinement within five years from the present offense. The intervening Texas offense is a “qualified offense” committed within five years and supports the habitual offender classification. Since it was not for an “enumerated felony,” it cannot satisfy the habitual violent felony classification.
Trott, pursuant to his agreement, should be resentenced to 27 years without the imposition of the mandatory sentence.
REVERSED.
GRIFFIN and DIAMANTIS, JJ., concur. . . Trott was convicted of this offense in June, 1972 and released from confinement on June 1, 1984.
. He was sentenced to three years commencing on February 13, 1985.
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Robinson v. State, 692 So. 2d 883 (Fla. 1997)…at the necessary predicate offenses are absent. See Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1998), disapproved on other grounds, White v. State, 666 So. 2d 896 (Fla.1996); Gahley v. State, 605 So. 2d 1309 (Fla. 1st DCA 1992); Trott v. State, 579 So. 2d 807 (Fla. 5th DCA 1991). Nevertheless, because of the defense’s concession, the state did not have the opportunity to offer evidence establishing that Robinson’s Georgia offense qualified as a predicate HFO offense. I would therefore reverse and remand…
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Walters v. State, 812 So. 2d 457 (Fla. 5th DCA 2002)…potential sentence was “a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.”1 The concurrent sentences of 70 years exceeded that 40 year maximum and the defendant may not plead to an illegal sentence. Trott v. State, 579 So. 2d 807, 808 (Fla. 5th DCA 1991). We vacate the concurrent sentences in these two cases and remand for resentenc-ing. We note that because Walters agreed to a sentence of 70 years in the two cases referenced above, he could still be resen-tenced to that sa…
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Robinson v. State, 680 So. 2d 481 (Fla. 1st DCA 1996)…the necessary predicate offenses are absent. See Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1993), disapproved of on other grounds, White v. State, 666 So. 2d 895 (Fla.1996); Gahley v. State, 605 So. 2d 1309 (Fla. 1st DCA 1992); Trott v. State, 579 So. 2d 807 (Fla. 5th DCA 1991). Nevertheless, because of the defense’s concession, the state did not have the opportunity to offer evidence establishing that Robinson’s Georgia offense qualified as a predicate HFO offense. I would therefore reverse and remand…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Florida BAR v. Mullins, 527 So. 2d 1380 (Fla. 1988)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Kropff v. Dep't OF Hwy. Safety & Motor Vehicles, 530 So. 2d 304 (Fla. 1988)
- Taylor v. State, 512 So. 2d 304 (Fla. 1st DCA 1987)