KENNETH N. HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Hayes appealed his sentences in two cases, arguing his nine-year sentence in Case No. 93-14171 for attempted robbery exceeded the statutory maximum of five years and that the absence of a guidelines scoresheet raised questions about proper sentencing. The court agreed and reversed, remanding for resentencing with a proper guidelines scoresheet.
Hayes's sentence in Case No. 93-14171 is illegal because it exceeds the statutory maximum of five years. The absence of a guidelines scoresheet in the appellate record prevents the court from determining whether a presumptive sentencing error occurred, and because two cases are involved, the court cannot find the failure to file harmless error as it did in prior cases.
[1] A sentence exceeding the statutory maximum for a felony offense is illegal.
[2] A court must file a guidelines scoresheet when imposing a sentence.
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Join FLexlaw to unlock all legal intelligence“The sentence in Case No. 93-14171 is illegal.”
Establishes that a nine-year sentence for a third degree felony with a statutory maximum of five years exceeds the legal limit.
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Join FLexlaw to unlock all legal intelligenceHayes was originally sentenced in Case No. 93-14171 to thirty months suspended with two years community control for attempted robbery, which was incor…
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RYDER, Acting Chief Judge.
Kenneth Hayes contends that he was illegally sentenced because his sentence in Case No. 93-14171 for attempted robbery exceeds the statutory maximum and that the absence of a guidelines scoresheet filed in the appellate record for either Case No. 93-14171 or 93-15570 raises a question whether the judge properly sentenced him without first computing the presumptive sentence. The state concedes that the case should be remanded for resentencing with a proper guidelines scoresheet. We, therefore, reverse and remand for resentencing.
The appellant was originally sentenced in Case No. 93-14171 to thirty months’ imprisonment which was suspended, and he was placed on community control for two years. The original sentencing documents incorrectly classified the attempted robbery as a second degree felony. Subsequently, his community control was revoked as a consequence of the robbery offense charged in Case No. 93-15570. At the sentencing hearing on both cases, the prosecutor advised the court that the sentencing document should be corrected to reflect that the attempted robbery offense was a third degree felony, and that the maximum sentence was five years. Nonetheless, the appellant was sentenced in each case to nine years’ imprisonment to run concurrently. The sentence in Case No. 93-14171 is illegal. See Green v. State, 502 So. 2d 999 (Fla. 2d DCA 1987).
Although the court apparently utilized the guidelines scoresheet once during the sentencing, we cannot determine whether the court committed a presumptive sentencing error. See Robinson v. State, 471 So. 2d 671 (Fla. 2d DCA 1985). Although the failure to file a scoresheet was deemed harmless error in Tarver v. State, 553 So. 2d 257 (Fla. 2d DCA 1989), the record here involves sentencing in two cases. It is, therefore, not clear, as it was in Tarver, that the failure to file the scoresheet was harmless error. We, therefore, reverse and remand for re-sentencing in Case Nos. 93-14171 and 93-15570 and direct the filing of a guidelines scoresheet. The resentencing in Case No. 93-14171 should be within the statutory maximum of five years’ imprisonment.
CAMPBELL and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brooks v. State, 851 So. 2d 873 (Fla. 1st DCA 2003)…cause the two offenses fell under the same version of the [*876] sentencing guidelines); see also Fla. R.Crim. P. 3.703(d)(2). As such, it is not clear that the failure to file the pertinent scoresheet constituted harmless error. See Hayes v. State, 667 So. 2d 454, 454 (Fla. 2d DCA 1996) (reversing and remanding for resentencing as it was not clear that the failure to file the scoresheet was harmless error). Accordingly, we reverse the sentences in case numbers 97-05, 97-16, 97-70, and 97-98 and remand for re…
Authorities Cited
- Jasper Robinson v. State, 471 So. 2d 671 (Fla. 2d DCA 1985)
- Green v. State, 502 So. 2d 999 (Fla. 2d DCA 1987)
- Tarver v. State, 553 So. 2d 257 (Fla. 2d DCA 1989)