ERIC EUGENE VICKERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Eugene Vickers appealed the denial of his motion to correct an illegal sentence of thirty years for third degree murder with a firearm. The court agreed the sentence was illegal because the maximum penalty for this second degree felony cannot exceed fifteen years, and a sentence cannot be enhanced for use of a weapon when that use is an essential element of the crime.
The sentence is illegal because third degree murder with a firearm is a second degree felony with a maximum penalty of fifteen years, and a sentence cannot be enhanced for the use of a weapon when its use is an essential element of the crime charged. The court reversed and remanded for resentencing within the fifteen-year maximum or to allow withdrawal of the guilty plea.
[1] A defendant is entitled to the benefit of a plea bargain agreement.
[2] A trial court must impose sentences that comply with statutory maximums.
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Join FLexlaw to unlock all legal intelligence“a conviction for third degree murder is a second degree felony for which the maximum penalty cannot exceed fifteen years' incarceration”
Establishes the maximum sentence allowed for the crime of conviction
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Join FLexlaw to unlock all legal intelligenceVickers was originally charged with first degree murder and robbery. He entered into a negotiated plea agreement and pled guilty to the lesser charge …
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[*1230] PER CURIAM.
Eric Eugene Vickers appeals the denial of his motion to correct illegal sentence in which he asserts he was improperly sentenced to thirty years’ imprisonment for a second degree felony. We agree that the sentence is illegal.
Originally, Vickers was charged with first degree murder and robbery. In a negotiated agreement, Vickers pled guilty to the lesser charge of third degree murder with a firearm; the armed robbery charge was nolle prossed. The agreed term of imprisonment was thirty years with a three year minimum mandatory.
Vickers correctly argues that the sentence is illegal because a conviction for third degree murder is a second degree felony for which the maximum penalty cannot exceed fifteen years’ incarceration.
The trial court denied the motion to correct the sentence, finding that the sentence was properly enhanced because a firearm was used in the murder. The holding is based upon the fact that the supreme court did not decide Gonzalez v. State, 585 So. 2d 932 (Fla.1991)1 until seventeen months after the sentence was imposed in this case. The court indicated that the supreme court ruling should not be applied retroactively.
The trial court’s reliance upon the timing of the issuance of Gonzalez is misplaced. Prior to the date sentence was imposed, this court and other courts have held that a sentence cannot be enhanced for the use of a weapon when its use is an essential element of the crime charged. See Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989), approved, Gonzalez v. State, 585 So. 2d 932 (Fla. 1991); Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989); Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988).
A defendant cannot agree to an illegal sentence, therefore, we reverse and remand for the court to resentence Vickers within the fifteen year maximum sentence range or allow him to withdraw his plea and to proceed accordingly.
SCHOONOVER, A.C.J., and PATTERSON and ALTENBERND, JJ., concur. . In Gonzalez, the supreme court ruled that the use of a firearm is an essential element of the offense of third degree murder with a firearm and that the sentence could not be enhanced due to the use of a firearm.
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Bradley v. State, 3 So. 3d 1168 (Fla. 2009)…ear mandatory minimum sentence that fact does not make the sentence legal where the information charged a crime with only a ten-year mandatory minimum sentence. See id. (citing Leavitt v. State, 810 So. 2d 1032 (Fla. 1st DCA 2002); Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994)). The First District Court of Appeal held similarly in Mobley v. State, 939 So. 2d 213 (Fla. 1st DCA 2006). Mobley entered a plea of guilty to two counts of armed robbery pursuant to a plea agreement. The plea agreement called fo…
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Sheron Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003)…0 So. 2d 1032 (Fla. 1st DCA 2002) (reversing 20 year sentence on defendant’s negotiated plea to a 2nd degree felony since the statutory maximum for a 2nd degree felony was 15 years; a defendant cannot agree to an illegal sentence); Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994). Moreover, the fact that the evidence presented before Jackson ended the proceedings by changing his plea established that he had in fact discharged a firearm resulting in great bodily harm during the commission of the robbery, do…
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Brooks v. State, 649 So. 2d 329 (Fla. 5th DCA 1995)…nt, provided that the sentence does not exceed the statutory maximum. Smith v. State, 529 So. 2d 1106, 1107 (Fla.1988); Quarterman v. State, 527 So. 2d 1380, 1382 (Fla.1988). Cf. Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994); Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994); Marshall v. State, 623 So. 2d 1230 (Fla. 1st DCA), appeal dismissed, 626 So. 2d 207 (Fla.1993). Accordingly, we affirm Brooks’ departure sentence. We vacate, however, the special condition in each sentence which requires Brooks…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gonzalez v. State, 585 So. 2d 932 (Fla. 1991)
- Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989)
- Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988)
- Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989)
- Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988)