ROBERT B. HAUSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
An illegal sentence resulting in excessive incarceration is fundamental error and remediable by direct appeal.
The appellant's prior felony DUI conviction was reversed and remanded for resentencing as a first offense. However, the trial court failed to vacate t…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Fundamental Error cases and more on FLexlaw
STONE, Judge.
In Hauss v. State, 574 So. 2d 1141 (Fla. 4th DCA 1991), the appellant’s conviction and sentence for felony D.U.I. was reversed because Hauss’ three previous D.U.I. convictions were not alleged in the information. This result was mandated by State v. Rodriguez, 575 So. 2d 1262, 1264 (Fla.1991).
In Hauss I, this court directed the trial court to “enter an adjudication of first offense D.U.I. and to resentence the defendant, accordingly.” On remand, however, the trial court failed to vacate the conviction and sentenced appellant to 12 months in jail and payment of a fine of $2,500. This sentence exceeds the maximum sentence allowed by law for a first offense D.U.I. Section 316.193(2)(a), Fla.Stat. (1989).
The state acknowledges that this sentence is illegal and argues only whether the illegal sentence should be remedied by this direct appeal or pursuant to Florida Rule of Criminal Procedure 3.800(a). However, it is well established that a sentence resulting in excessive incarceration constitutes fundamental error remediable by direct appeal. E.g. Wickett v. State, 467 So. 2d 430 (Fla. 4th DCA 1985).
We recognize that the trial court, notwithstanding the explicit wording of our prior opinion, may have believed that the longer misdemeanor sentence was permissible because the defendant had at least three D.U.I. convictions. However, it is clear that the court in Hauss I was using the remand instructions utilized by the supreme court in Rodriguez, in which that court mandated that on remand Rodriguez was to be sentenced as a first time offender. Here, the state does not question the necessity for such a limited sentence. Therefore, we do not address that issue further. Therefore, the sentence is reversed. We remand for resentencing.
LETTS and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Jenkins v. State, 617 So. 2d 836 (Fla. 4th DCA 1993)…the trial court to adjudicate and sentence Jenkins for a first degree misdemeanor theft when the State failed to allege the element making that theft a first degree misdemeanor. See Clay v. State, 595 So. 2d 1052 (Fla. 4th DCA 1992); Hauss v. State, 592 So. 2d 783 (Fla. 4th DCA 1992); Meenaghan v. State, 601 So. 2d 307 (Fla. 4th DCA 1992). We reverse and remand for further proceedings consistent herewith. GLICKSTEIN, C.J., KLEIN, J., and WALDEN, JAMES H., Senior Judge, concur.…
-
State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996)…three prior DUI convictions. For this reason, the state contends that Rodriguez is not controlling and one or two prior DUI convictions need not be alleged in the charging document. This issue was touched upon, but not resolved, in Hauss v. State, 592 So. 2d 783 (Fla. 4th DCA 1992) (“Hauss II”), which was before this court after remand to the trial court by Hauss v. State, 574 So. 2d 1141 (Fla. 4th DCA 1991) (“Hauss I”). The state in Hauss I did not question whether an enhanced misdemeanor sentence, rather…
Authorities Cited
- State v. Narcisco Rodriguez, 575 So. 2d 1262 (Fla. 1991)
- Pearce v. REL Enters., 467 So. 2d 430 (Fla. 4th DCA 1985)
- Hauss v. State, 574 So. 2d 1141 (Fla. 4th DCA 1991)
- Alec Ross v. Nova Townhouse Condo. Ass'n, Inc., 574 So. 2d 1141 (Fla. 4th DCA 1991)