KEVIN PAUL GOUTIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Goutier challenged his sentence for attempted second-degree murder with a weapon, arguing the offense was improperly classified as a first-degree felony and his victim-injury score was excessive. The court affirmed the felony classification but reversed and remanded for resentencing because the combined term of imprisonment and probation exceeded the statutory maximum of thirty years.
The offense was properly classified as a first-degree felony because the attempt statute must be applied first to reduce second-degree murder to attempted second-degree murder (a second-degree felony), and then the weapon enhancement applies to elevate it to a first-degree felony. However, the sentence is illegal because the combined thirty years of incarceration plus ten years of probation exceeds the statutory maximum of thirty years. The victim-injury points were properly assessed based on evidence of physical injury from the stabbing.
[1] A sentence that exceeds the statutory maximum is illegal and subject to correction.
[2] In a split sentence, the combined number of years of incarceration and probation cannot exceed the statutory maximum.
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“By applying the attempt statute first, the crime of second-degree murder is reduced from a first-degree felony to the second-degree felony of attempted second-degree murder. Next, the enhancement statute is applied to reclassify the second-degree felony to a first-degree felony.”
Establishes the proper order for applying the attempt statute before weapon enhancement in crime classification
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Join FLexlaw to unlock all legal intelligenceGoutier was convicted of attempted second-degree murder with a weapon, among other charges. The factual basis at guilty plea showed he burglarized a s…
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PER CURIAM.
Kevin Goutier challenges the trial court’s denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. Because his sentence on one count exceeds the statutory maximum, we reverse.
Goutier alleges in his motion that attempted second-degree murder with a weapon is a second-degree felony and that the scoresheet improperly scored it as a first-degree felony. Goutier’s classification of his offense is correct if the charge of second-degree murder is first enhanced by the weapon to a life felony and then reduced to a second-degree felony by application of the attempt statute.
However, the crime must be determined before any enhancement due to the use of a weapon, which is strictly a sentencing technique, can be applied. By applying the attempt statute first, the crime of second-degree murder is reduced from a first-degree felony to the second-degree felony of attempted second-degree murder. Next, the enhancement statute is applied to reclassify the second-degree felony to a first-degree felony.
Therefore, the offense was properly classified as a first-degree felony. See Baque v. State, 653 So. 2d 1105 (Fla. 3d DCA 1995). We observe that the trial court erroneously justi fied the classification by an analysis that relied on the facts adduced at the time the plea was entered rather than on the conviction actually obtained.
Nevertheless, the trial court reached the correct result, albeit with an incorrect analysis.
The sentence imposed on this count, however, is illegal because it exceeds the statutory maximum of thirty years and is, therefore, subject to correction in a rule 3.800(a) proceeding. See Davis v. State, 661 So. 2d 1193 (Fla.1995). The trial court sentenced Goutier to thirty years in prison, followed by ten years’ probation. In a split sentence such as this one, the combined number of years of incarceration and probation cannot exceed the statutory maximum. Fla. R.Crim. P. 3.701(d)(12); Stephens v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996). Therefore, Goutier must be resentenced on this count.
Goutier also asserts that he was scored eighty victim-injury points in contravention of the dictates of Karchesky v. State, 591 So. 2d 930 (Fla.1992).
The factual basis recited at the time Goutier entered his guilty plea discloses that he burglarized a structure, committed two sexual batteries on his victim, and stabbed her with a screwdriver during the episode. Because these facts support a finding of physical injury sufficient to justify the assessment of points for moderate injury, the trial court properly denied this claim. See Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA) (explaining that the terms of section 921.001, Florida Statutes (1992), do not apply retroactively and that evidence of physical injury may serve as the basis for injury points in circumstances where penetration alone will not), review denied, 649 So. 2d 235 (Fla.1994).
Affirmed in part, reversed in part, and remanded for resentencing.
SCHOONOVER, A.C.J., and FULMER and NORTHCUTT, JJ., concur.
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Cited By (12 total)
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Stoute v. State, 915 So. 2d 1245 (Fla. 4th DCA 2005)…tempted crime and involves the use of a firearm, then the court should sequentially: (1) reduce the classification of the underlying crime due to the “attempt”; then, (2) apply the weapon enhancement to increase the classification. Goutier v. State, 692 So. 2d 978, 978 (Fla. 2d DCA 1997). Following that procedure in this case required the trial court to drop the level of the defendant’s conviction due to the “attempt” from a first degree felony to a second degree felony. Then, the court [*1248] could reclassi…
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Young v. State, 716 So. 2d 280 (Fla. 2d DCA 1998)…e judgment incorrectly classifies Young’s conviction for attempted second-degree murder with a firearm as a second-degree felony, while it is, in fact, a first-degree felony. See Mathis v. State, 693 So. 2d 1032 (Fla. 2d DCA 1997); Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997). Affirmed in part, reversed in part, and remanded. CAMPBELL, A.C.J., and FULMER and GREEN, JJ., concur. . Life felonies did not become eligible for habitual offender treatment until October 1, 1995. See Nathan v. State, 689 So.…
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Raynard Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005)…. State, 857 So. 2d 344, 345 (Fla. 2d DCA 2003) (attempted second-degree murder is a second-degree felony, properly reclassified as a first-degree felony based on use of a weapon); Badia v. State, 770 So. 2d 300 (Fla. 3d DCA 2000); Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997); Harris v. State, 660 So. 2d 409, 410 (Fla. 4th DCA 1995); Maynoldi v. State, 456 So. 2d 587, 588 (Fla. 3d DCA 1984). Where the sentence imposed exceeds the 30-year maximum sentence for a first-degree felony, as outlined in sectio…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)
- Stephens v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996)
- Routenberg v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996)
- Baque v. State, 653 So. 2d 1105 (Fla. 3d DCA 1995)