RALPH NATHANIEL MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
This is an appeal by the defendant Ralph Nathaniel Miller from a trial court order denying his motion to correct an illegal sentence under Fla.R.Crim.P. 3.800(a). Based on the state’s confession of error, which we accept as well-taken, we reverse the order appealed from based on a holding that where, as here, a sentence is imposed under the sentencing guidelines, the trial court has no authority to retain jurisdiction over the defendant’s sentence. Hansbrough v. State, 509 So. 2d 1081,1087 (Fla.1987) (“Because the sentencing guidelines apply to that sentence, however, the trial court should not have retained jurisdiction for one-third of the armed robbery sentence.”); Gainey v. State, 557 So. 2d 887 (Fla. 1st DCA 1990). We find no merit, however, in the remaining arguments raised by the defendant on appeal.
Accordingly, the order under review is reversed, and the cause is remanded to the trial court with directions to grant, in part, the motion to correct illegal sentence and delete that portion of the defendant’s sentence for sexual battery which retains jurisdiction over the defendant’s sentence by denying the defendant any eligibility for parole.
Reversed and remanded.
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Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)…efusal to grant post-conviction relief on this basis. We acknowledge that our case law has established that the improper retention of jurisdiction constitutes an illegal sentence. Devane v. State, 548 So. 2d 886 (Fla. 5th DCA 1989); Miller v. State, 649 So. 2d 365 (Fla. 3d DCA 1995). However, we note that this case law predates the release of Davis and Callaway and thus raises the question whether such error falls within the limited confines of the Davis and Callaway definition of an illegal sentence. It appe…
Authorities Cited
- Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987)
- Daron Huston v. State, 557 So. 2d 887 (Fla. 4th DCA 1990)