JOHN PAUL BROUSSEAU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brousseau appeals sentences imposed after pleading nolo contendere to five criminal charges across two cases. The court found multiple sentencing errors where the trial court imposed sentences exceeding statutory maximums and minimums for habitual violent felony offender convictions, and vacated four of the five sentences for resentencing.
Four of the five sentences were illegal and vacated for resentencing. For Case No. 90-2024, the fifteen-year sentences (including probation) exceeded the ten-year maximum for third degree felonies. For Case No. 90-1990, the fifteen-year minimum mandatory sentences for the two second degree felonies exceeded the ten-year minimum mandatory applicable to second degree felonies; only the armed burglary sentence (first degree felony) was affirmed.
[1] A sentence imposed under the habitual violent felony offender statute that exceeds the statutory maximum for the underlying felony is illegal.
[2] The habitual violent felony offender statute mandates a minimum of ten years for a second-degree felony, not fifteen.
Previewing 2 of 4 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“However, pursuant to section 775.084(4)(b)3, the habitual violent offender sentencing statute, the maximum, sentence which can be imposed is ten years for a third degree felony. Brousseau's fifteen year sentences (including probation) are illegal sentences.”
Establishes that Case No. 90-2024 sentences violated statutory maximum for third degree felonies
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Join FLexlaw to unlock all legal intelligenceBrousseau pleaded nolo contendere to forgery and uttering a forgery (third degree felonies) in Case No. 90-2024 and armed burglary of a dwelling (firs…
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W. SHARP, Judge.
Brousseau appeals from five sentences he received after pleading nolo contendere to five criminal charges. Pointing out a sentencing error concerning Case No. 90-2024 in an Anders1 brief, the public defender then sought to withdraw. We disagree the errors involved in this case are “relatively minor”. Accordingly, we deny the public defender’s motion to withdraw. We vacate four of the sentences imposed and remand for resentencing.
In Case No. 90-2024, Brousseau was adjudicated guilty of forgery2 and uttering a forgery.3 Both are third degree felonies. He was sentenced as a habitual violent felony offender to two concurrent ten year terms, followed by five years on probation. However, pursuant to section 775.084(4)(b)3, the habitual violent offender sentencing statute, the maximum, sentence which can be imposed is ten years for a third degree felony. Brousseau’s fifteen year sentences (including probation) are illegal sentences.
With regard to Case No. 90-1990, Brousseau was adjudicated guilty of armed burglary of a dwelling,4 a first degree felony; dealing in stolen property5 a second degree felony; and possession of a firearm by a convicted felon,6 a second degree felony. The court sentenced him as an habitual violent felony offender to three concurrent fifteen year terms for each crime, followed by five years on probation, specifying that the fifteen years was the minimum mandatory.
Pursuant to the Habitual Offender Statute, section 775.084, two of these three sentences are improper. A person convicted as an habitual violent felony offender for a first degree felony can receive up to life, and fifteen years is the statutory minimum mandatory he must serve prior to release.7 However, the minimum mandatory sentence for a second degree felony is ten years — not fifteen.8
Because .of these sentencing errors, we vacate all but the sentence imposed for armed burglary in Case No. 90-1990, which we affirm. We remand for resentencing in both cases for all of the other criminal charges.
AFFIRMED in part; four sentences VACATED; and REMANDED.
DAUKSCH and PETERSON, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. § 831.01,- Fla.Stat. (1989).
. § 831.02, Fla.Stat. (1989).
. § 810.02(2), Fla.Stat. (1989).
. § 812.019(1), Fla.Stat. (1989).
. § 790.23, Fla.Stat. (1989).
. § 775.084(4)(a) and (4)(b)l., Fla.Stat. (1989).
. § 775.084(4)(b)2., Fla.Stat. (1989).
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Citator
Cited By
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White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)…abitual violent felony offender, minimum mandatory sentence must be included in sentence); Lowe, 605 So. 2d at 507 (relying on King in holding that habitual violent felony offender’s sentence must include minimum mandatory term); Brousseau v. State, 590 So. 2d 997 (Fla. 5th DCA1991). Contra Green v. State, 615 So. 2d 823 (Fla. 4th DCA1993) (finding habitual violent felony offender sentencing is discretionary, so that imposition of minimum mandatory term is not required). Appellant has not supplied any authori…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)