REGINALD D. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Davis was convicted of cocaine possession and sale offenses, including sale within 1,000 feet of a school. He appealed his sentences, arguing the trial court erroneously imposed a mandatory 3-year minimum term for the school-zone offense, but the court affirmed, finding the 9-year sentence imposed was legal regardless of the minimum term issue.
The court affirmed because the 9-year sentence imposed was clearly legal regardless of whether the 3-year minimum term was mandatory, and Davis failed to object or preserve the issue at trial. The court was convinced the trial court would have imposed the same sentence had it known the minimum term was not mandatory.
[1] A sentence imposed under a statute later clarified to not mandate a minimum term is not illegal if the sentence itself is otherwise legal and the defendant failed to pres…
[2] A trial court may have the authority to reduce or modify a sentence within sixty days following the issuance of an appellate court's mandate.
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 9-year sentence, subject to a 3-year minimum term, imposed upon appellant pursuant to section 893.-13(l)(e)l is clearly a legal sentence; and appellant failed to object or otherwise preserve the issue”
Establishes the basis for affirmance: the underlying sentence was legal and the issue was not preserved
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavis was convicted after a jury trial of two counts of possession of cocaine, one count of sale of cocaine, and one count of sale of cocaine within 1…
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PER CURIAM.
In this direct criminal appeal, appellant seeks review of his sentences. In particular, he argues that the trial court imposed a 3-year minimum term for the offense of sale of cocaine within one thousand feet of a school because it believed, erroneously, that such a term was mandatory pursuant to section 893.13(l)(e)l, Florida Statutes (1991). We affirm.
Appellant was convicted, after a jury trial, of two counts of possession of cocaine, and one count each of sale of cocaine and sale of cocaine within one thousand feet of a school. At the time that he committed these offenses, appellant was on probation for aggravated assault with a firearm. The trial court sentenced appellant to concurrent sentences of five years on each of the possession counts, nine years on the sale count and nine years on the count charging sale within one thousand feet of a school. In addition, believing that the 3-year minimum term contained in section 893.13(l)(e)l, Florida Statutes (1991), was mandatory, the trial court imposed such a term for the count charging sale within one thousand feet of a school.
Subsequent to the trial court’s imposition of sentence, the supreme court held that, despite its apparently unambiguous language to the contrary, the 3-year minimum term contained in section 893.13(l)(e)l. is not mandatory. Scates v. State, 603 So. 2d 504 (Fla.1992). Relying upon Scates, appellant argues that all of his sentences should be vacated, and that the case should be remanded for resentencing as to all counts.
We affirm because the 9-year sentence, subject to a 3-year minimum term, imposed upon appellant pursuant to section 893.-13(l)(e)l is clearly a legal sentence; and appellant failed to object or otherwise preserve the issue. We are convinced, given appellant’s prior record and the comments of the trial court during sentencing, that the trial court would have imposed the same sentence had it been aware that the 3-year minimum term was not mandatory. Nevertheless, as in Graham v. State, 608 So. 2d 123-24 (Fla.2d DCA1992), although we affirm the legal sentence, “we note that the trial court has the authority to reduce or modify this sentence for a period of sixty days following the issuance of our mandate. Fla.R.Crim.P. 3.800(b).”
AFFIRMED.
SMITH, KAHN and WEBSTER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Carrick A. Scates v. State, 603 So. 2d 504 (Fla. 1992)
- Graham v. State, 608 So. 2d 123 (Fla. 2d DCA 1992)