LOUIS C. PINELLAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Louis Pinellas appealed the denial of his motion to correct an illegal sentence. The appellate court found that sentences imposed in case 89-199 violated sentencing guidelines and exceeded statutory maximums because the trial court imposed consecutive ten-year sentences without adjudicating Pinellas as a habitual offender in that case and without providing written reasons for the departure.
The trial court erred in denying the 3.800(a) motion as to the sentences in case 89-199. The consecutive ten-year sentences constituted an unauthorized guideline departure because Pinellas was not adjudicated a habitual offender in that case and no written reasons for departure were provided. Additionally, the cocaine sentence exceeded the statutory maximum penalty of five years.
[1] Consecutive sentences exceeding the recommended guidelines range constitute an unauthorized departure from the guidelines when the defendant has not been adjudicated a ha…
[2] A sentence imposed for possession of cocaine that exceeds the statutory maximum penalty for a third-degree felony is illegal.
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“The consecutive ten-year sentences represent an unauthorized guideline departure because the defendant was not adjudicated an habitual offender in that case and no written reasons for departure were given.”
Establishes the core error: departure from guidelines without proper habitual offender adjudication or written justification
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Join FLexlaw to unlock all legal intelligencePinellas pleaded nolo contendere to possession of a firearm by a convicted felon and possession of cocaine in case 89-199, and was convicted after jur…
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PER CURIAM.
This is an appeal from an order denying a defendant’s 3.800(a) motion for correction of an illegal sentence.
After pleading nolo contendere, the defendant was convicted of possession of a firearm by a convicted felon (§ 790.23, Fla. Stat.) and possession of cocaine (§ 893.-03(2)(a)4, Fla.Stat.) in ease no. 89-199. After a jury trial the defendant was found guilty and convicted of resisting a law enforcement officer with violence (§ 843.01, Fla.Stat.) and evidence tampering (§ 918.-13(l)(a), Fla.Stat.) in case no. 89-350.
The court sentenced the defendant on both cases on the same day. At the sentencing hearing the State sought enhanced sentences under the habitual offender statute. See generally section 775.084, Florida Statutes. The State offered certification of prior convictions to support the habitual offender status. After hearing argument the trial court adjudicated the defendant guilty in cases 89-199 and 89-350. The trial court adjudicated the defendant to be an habitual offender in case 89-350 but did not make such an adjudication in case 89-199.
The written sentences in case 89-199 indicate consecutive ten year sentences for the two convictions. The written sentences in ease 89-350 indicate a ten year sentence for the resisting an officer conviction (on Count I) consecutive to a five year sentence for the evidence tampering conviction (on Count II). Neither written sentence indicated that the defendant was adjudged an habitual offender. On May 24, 1989, the court entered a corrected sentence in 89-350 in which the habitual offender status box was marked.
The defendant appealed these convictions. This court affirmed without opinion. See Pinellas v. State, 560 So. 2d 1182 (Fla. 5th DCA 1990).
In Case 89-199 the scoresheet prepared indicated a guidelines recommended range of 3¾⅛ to 4½ years incarceration. The consecutive ten-year sentences represent an unauthorized guideline departure because the defendant was not adjudicated an habitual offender in that case and no written reasons for departure were given.
In addition the sentence imposed in case 89-199 for possession of cocaine exceeds the statutory maximum penalty of five years for a third degree felony. See § 893.13(l)(f), Fla.Stat. The trial court erred in denying the 3.800(a) motion as to the sentences imposed in case 89-199. The case is remanded for the trial court to correct these sentences by sentencing defendant within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990).
SENTENCES VACATED; CAUSE REMANDED.
DAUKSCH, COWART and GRIFFIN, JJ., concur.
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Cited By
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Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994)…with the third district’s decision in Young and affirm the trial court. BARFIELD and MINER, JJ., concur. . In Brown, supra, 633 So. 2d at 116 n. 2, Judge Altenbernd provided examples of proper uses of rule 3.800(a) as follows: Pinellas v. State, 599 So. 2d 272 (Fla. 5th DCA 1992) (sentence in excess of statutory maximum); Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991) (retention of jurisdiction on life sentence in excess of time allowed by statute); Owens v. State, 557 So. 2d 199 (Fla. 2d DCA 1990…
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Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)…illegal sentence. In this manner, some appeals could be avoided. Moreover, misuse of the phrase "illegal sentence” in cases involving direct appeals would occur far less often. . Examples of proper uses of rule 3.800(a) include: Pinellas v. State, 599 So. 2d 272 (Fla. 5th DCA 1992) (sentence in excess of statutory maximum); Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991) (retention of jurisdiction on life sentence in excess of time allowed by statute); Owens v. State, 557 So. 2d 199 (Fla. 2d DCA 1990…
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Bedford v. State, 617 So. 2d 1134 (Fla. 4th DCA 1993)…attack on an illegal sentence can be raised for the first time in a Rule 3.800 motion, even after an affirmance of the judgment and sentence on direct appeal. See id.; Anderson v. State, 584 So. 2d 1127 (Fla. 4th [*1136] DCA1991); Pinellas v. State, 599 So. 2d 272 (Fla. 5th DCA1992). Here, appellant did not challenge any of the mandatory provisions of his kidnapping sentence in the supreme court. Moreover, and perhaps more importantly, there is simply no legal basis for the provision of appellant’s kidnappi…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)