CHRISTOPHER A. ARNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Arnett appeals his sentencing on charges including dealing in stolen property, firearm possession by a convicted felon, and burglary of a conveyance. The court finds that the three-year mandatory minimum sentence for firearm possession and the split sentence structure (five years incarceration plus six months probation) both exceed statutory limits and are illegal, even when imposed pursuant to a plea agreement.
The court held that the three-year mandatory minimum sentence does not apply to possession of a firearm by a convicted felon because that offense is not enumerated in the applicable statute, and that the combined five-year incarceration plus six-month probation sentence exceeds the statutory maximum of five years for third-degree felonies. Neither illegality can be cured by a plea agreement.
[1] A three-year mandatory minimum sentence cannot be imposed for possession of a firearm by a convicted felon unless the offense is enumerated in section 775.087(2), Florida…
[2] The combined term of incarceration and probation in a split sentence cannot exceed the statutory maximum penalty for the offense.
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Join FLexlaw to unlock all legal intelligence“The offense of possession of a firearm by a convicted felon is not one of the offenses enumerated in section 775.-087(2), Florida Statutes (1989), to which the three-year mandatory minimum provisions apply.”
Establishes that the three-year mandatory minimum does not apply to the firearm possession charge
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Join FLexlaw to unlock all legal intelligencePursuant to a plea agreement, Arnett pled no contest to dealing in stolen property, possession of a firearm by a convicted felon, and two counts of bu…
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JOANOS, Chief Judge.
Christopher A. Arnett (appellant), appeals the sentencing disposition in this case. Pursuant to a plea agreement, appellant pled no contest to charges of dealing in stolen property, possession of a firearm by a convicted felon, and two counts of burglary of a conveyance. He was sentenced to concurrent five-year periods of incarceration as to each count, with a concurrent three-year minimum mandatory sentence for the possession of a firearm offense, the sentences to be followed by a six-month probationary period. Appellant contends the three-year minimum mandatory sentence is illegal, and the split sentences of five years followed by six months probation exceed the statutory maximum for third degree felonies, and thus are illegal. The state agrees that the sentencing plan is improper, and the impropriety was not cured by the plea agreement. We reverse and remand for resentencing.
The offense of possession of a firearm by a convicted felon is not one of the offenses enumerated in section 775.-087(2), Florida Statutes (1989), to which the three-year mandatory minimum provisions apply. See Kennedy v. State, 564 So. 2d 1127, 1130 (Fla. 1st DCA 1990); Gainey v. State, 557 So. 2d 887, 888 (Fla. 1st DCA 1990). Similarly, it is well settled that the total of the incarcerative and probationary portions of a split sentence may not exceed the term provided by general law. Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Bono v. State, 553 So. 2d 293, 294 (Fla. 1st DCA 1989). Burglary of a conveyance is a third degree felony, see § 810.-02(3), Fla.Stat.(1989), for which the maximum penalty is five years. See § 775.-082(3)(d), Fla.Stat.(1989). Therefore, appellant’s five-year concurrent sentences followed by six months probation exceed the statutory maximum.
Because “[a] trial court cannot impose an illegal sentence pursuant to a plea bargain,” Williams v. State, 500 So. 2d 501, 503 (Fla.1986), the sentences are vacated, and the cause is remanded for resentencing within the statutory maximum, and within the sentence bargained for, or appellant should be afforded an opportunity to withdraw his plea.
ALLEN and WEBSTER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1993)…e state to accept the plea with a sentence imposed without HVFO sanctions or allow appellant to withdraw his plea and be subject to trial and the opportunity to negotiate a new plea. See Forbert v. State, 437 So. 2d 1079 (Fla.1983); Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992); Morris v. State, 620 So. 2d 1081 (Fla. 2d DCA 1993); Davidson v. State, 468 So. 2d 263 (Fla. 2d DCA 1985); [*1151] Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). Based on our disposition of the above point, it is unnecessary…
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Walker v. State, 604 So. 2d 913 (Fla. 1st DCA 1992)…n a sentencing plan involves a split sentence, i.e., a sentence combining incarceration and probation, the total of the incarcerative and probationary portions of the sentence may not exceed the maximum term provided by general law. Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992); Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991). Second, a period of probation “shall commence immediately upon the release of the defendant from incarceration.” § 948.…
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Arnett v. State, 626 So. 2d 308 (Fla. 1st DCA 1993)…o contest plea in exchange for a five year sentence with a three year minimum mandatory, to be followed by six months of probation. No credit for time served was granted at that time. On appeal, this court remanded for resentencing, Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992). Appellant was resentenced on July 24, 1992. At that time, he was given credit for 108 days of pre-sentence jail time which he was entitled to at his original sentencing on August 16, 1991. Appellant now argues that his sentenc…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Kennedy v. State, 564 So. 2d 1127 (Fla. 1st DCA 1990)
- Roache v. State, 547 So. 2d 706 (Fla. 1st DCA 1989)
- Daron Huston v. State, 557 So. 2d 887 (Fla. 4th DCA 1990)
- Smith v. State, 553 So. 2d 293 (Fla. 2d DCA 1989)
- Bono v. State, 553 So. 2d 293 (Fla. 1st DCA 1989)