JESUS BOVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The State conceded error in imposing an illegal sentence on Bover that included five years of probation exceeding the statutory maximum for third-degree felonies. The court reversed and remanded, vacating the illegal probationary sentence and the subsequent habitual offender sentence predicated on violation of that illegal probation, while leaving intact the habitual offender sentence for the new offenses.
The initial five-year probationary sentence exceeded the statutory maximum and was illegal; therefore, the probationary sentence and affidavit of probation violation must be vacated. The ten-year habitual offender sentence imposed for the original three cases must also be vacated as necessarily illegal, but the ten-year habitual offender sentence for the new 1993 offenses remains valid.
[1] A sentence for violating an illegally-imposed period of probation is also illegal.
[2] A probationary sentence for third-degree felonies that exceeds the statutory maximum of five years for state supervision is illegal.
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“his initial concurrent five year prison and five year probationary sentence in case numbers 91-38173, 92-15536, and 92-15712 for third degree felonies was illegal where it exceeded the five year statutory maximum for state supervision”
Establishes the fundamental illegality of the sentence—the probationary component violated the statutory maximum
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1992, Bover pled no contest to seven third-degree felonies and five second-degree misdemeanors across three cases, receiving a concurrent five-year…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Statutory Maximum Sentence cases and more on FLexlaw
PER CURIAM.
CONFESSION OF ERROR
Upon the State’s proper confession of error, we reverse the summary denial of appellant’s motion to correct an illegal sentence pursuant to Rule 3.800, Florida Rules of Criminal Procedure.
On June 30,1992, appellant pled no contest to all counts of three separate informations (ease numbers 91-38173, 92-15536 and 92-15712) which contained a total of seven third degree felonies and five second degree misdemeanors. In exchange for his plea, a concurrent sentence of five years state prison followed by five years probation was imposed upon appellant for all of the third degree felony counts.1 Appellant completed his prison term and was released on the prescribed probationary status. While on probationary status, he was subsequently charged by three new informations (case numbers 93-31520, 93-31524 and 93-33993) with a total of fifteen third degree felonies. The State filed its notice of intent to seek an enhanced sentence for appellant upon his conviction in cases 93-31520, 93-31524, and 93-33993 pursuant to section 775.084, Florida Statutes. The State also filed an affidavit of appellant’s violation of the terms of his probation imposed in case numbers 91-38173, 92-15536, and 92-15712.
On February 11, 1994, appellant entered an admission to both the affidavit of probation violation and pled no contest to the new substantive offenses contained in case numbers 93-31520, 93-31524 and 93-33993. After making the requisite findings that appellant met the criteria for habitualization, appellant was sentenced in all six informa-tions to a concurrent ten year prison term as a habitual offender. As the appellant argues on appeal and the State concedes, his initial concurrent five year prison and five year probationary sentence in case numbers 91-38173, 92-15536, and 92-15712 for third degree felonies was illegal where it exceeded the five year statutory maximum for state supervision. § 775.082(3)(c), Fla.Stat. (1993); Rule 3.701(d)(10) Fla.R.Crim.P.; see also, e.g., Eubanks v. State, 662 So. 2d 1360 (Fla. 3d DCA 1995).2 Since appellant has apparently com pleted his five year prison term imposed for these three cases, we remand with instructions that the additional five year probationary sentence and affidavit of violation filed pursuant thereto be vacated.
Obviously, any sentence for violating an illegally-imposed period of probation is also illegal.3 Consequently, on remand the trial court is directed to vacate the ten year habitual offender sentence imposed upon appellant in cases 91-38173, 92-15536, and 92-15712. Our review of the record reflects no error, however, in the imposition of the ten year habitualization sentence for case numbers 93-31520, 93-31524, and 93-33993.
Reversed and remanded with instructions.
. The court suspended entry of sentence on all of the misdemeanor counts.
. As the case numbers indicate, these crimes were committed prior to the effective date of the 1994 sentencing guidelines, under which appel lant’s sentence could, theoretically, exceed the maximum provided for in § 775.082, Fla.Stat. See §§ 921.001(5), 921.0014(2), Fla.Stat. (1995); Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1995).
. Even if appellant could have been resentenced lawfully, he should not have received a habitual offender sentence where the State originally never filed a notice of its intent to seek enhanced penalties for these three informations. See Snead v. State, 616 So. 2d 964 (Fla.1993).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bover v. State, 732 So. 2d 1187 (Fla. 3d DCA 1999)…for postconviction relief under Florida Rule of Criminal Procedure 3.850, contending that his habitualization was improper because in separate proceedings, he had received postconviction relief with respect to three prior crimes, see Bover v. State, 671 So. 2d 828, 829-30 (Fla. 3d DCA 1996), two of which had been used as predicate offenses to qualify him as a habitual offender.3 The trial court properly denied defendant’s 1997 Rule 3.850 motion, and this court affirmed.4 See Bover v. State, 699 So. 2d 1384 (F…
-
Featherston v. State, 675 So. 2d 645 (Fla. 2d DCA 1996)…on May 19, 1994. Therefore, the probation sentences imposed beyond May 19, 1994, were illegal. Consequently, the December 30, 1994, sentences imposed for violating the illegally-imposed period of probation were illegal sentences. See Bover v. State, 671 So. 2d 828 (Fla. 3d DCA 1996). We reverse the sentences and remand to the trial court to direct the discharge of Featherston in Circuit Case Nos. 88-2884, 88-2896, and 89^129. ALTENBERND and QUINCE, JJ., concur.…
Authorities Cited
- Snead v. State, 616 So. 2d 964 (Fla. 1993)
- Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1996)
- Eubanks v. State, 662 So. 2d 1360 (Fla. 3d DCA 1995)