WALTER J. HARRIS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Harris appealed an order denying his motion to correct an illegal sentence imposed for probation violation. The court reversed, finding the trial court exceeded the one-cell bump-up permitted under sentencing guidelines by imposing a five-year sentence when the guidelines authorized a maximum of four and one-half years.
The trial court erred by imposing a five-year sentence when only a one-cell bump-up was permitted, which would have capped the sentence at four and one-half years. The improper two-cell bump-up appeared on the face of the scoresheet and constituted an illegal sentence properly raised via motion under rule 3.800(a).
[1] A trial court errs in summarily denying a motion to correct an illegal sentence when the sentencing court exceeds the one-cell bump-up permitted for violations of probati…
[2] An illegal sentence, correctable by a motion to correct illegal sentence, is one that appears on the face of the record and can be easily cured.
Previewing 2 of 3 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 trial court was authorized to bump his sentence up one cell, which would result in a recommended range of 2⅜ to 3½ years in prison, or a permitted range of community control or of one to four and one-half years in prison. The court instead sentenced Harris to five years in prison, stating as its reason for departure: 'One cell bump for VOP; sentence concurrent with sentence from Tampa.' This was error.”
Establishes that the trial court exceeded its sentencing authority by imposing a five-year sentence when guidelines permitted only up to four and one-half years with one-cell bump-up
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHarris pled guilty to grand theft in 1990 and received probation. He was arrested in 1991 for violating probation and found guilty. His guideline scor…
The full statement of facts, procedural history, and disposition for this case are member content.
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ERVIN, Judge.
Appellant, Walter Harris, Jr., appeals from an order denying his motion to correct illegal sentence, filed under Florida Rule of Civil Procedure 3.800(a). We reverse because the trial court erred in summarily denying appellant’s motion, since the record shows that the sentencing court exceeded the one-cell bump-up permitted for violations of probation.
Harris pled guilty to grand theft in 1990 and was sentenced to probation. He was arrested the following year and was found guilty of violating probation. His total score on his guideline seoresheet was 45 points, which resulted in a recommended sentence of community control or 12 to 30 months’ incarceration. The trial court was authorized to bump his sentence up one cell, which would result in a recommended range of 2⅜ to 3½ years in prison, or a permitted range of community control or of one to four and one-half years in prison. The court instead sentenced Harris to five years in prison, stating as its reason for departure: “One cell bump for VOP; sentence concurrent with sentence from Tampa.” This was error. Ree v. State, 565 So. 2d 1329 (Fla.1990); Lambert v. State, 545 So. 2d 838 (Fla.1989); Porter v. State, 579 So. 2d 345 (Fla. 1st DCA 1991).
Harris properly raised this issue via motion to correct illegal sentence, because the improper two-cell bump-up appears on the face of the seoresheet. See and compare Nowlin v. State, 639 So. 2d 1050, 1051-52 (Fla. 1st DCA 1994) (quoting Brown v. State, 633 So .2d 112 (Fla. 2d DCA 1994)), for proposition that illegal sentences are those which appear on the face of the record and can be easily cured on direct appeal); Judge v. State, 596 So. 2d 73, 77 (Fla. 2d DCA 1991) (en banc) (“[SJcoresheet errors that are not apparent from the face of the seoresheet may result in an erroneous sentence correctable on direct appeal, but not on a motion pursuant to rule 3.800(a).”), review denied, 613 So. 2d 5 (Fla.1992). Appellant did not enter into a plea agreement with the state; therefore, the case does not require any factual determination. Cf. Rouse v. State, 601 So. 2d 281 (Fla. 1st DCA) (claim that sentence exceeded one-cell bump-up could not be raised under rule 3.800(a), when sentence was imposed based upon plea bargain pursuant to nolo plea), review denied, 604 So. 2d 487 (Fla. 1992).
REVERSED and REMANDED.
MINER and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994)
- Rouse v. State, 601 So. 2d 281 (Fla. 1st DCA 1992)
- Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)
- Porter v. State, 579 So. 2d 345 (Fla. 1st DCA 1991)