ALBERT L. MAYS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentence imposed under the guidelines that exceeds the statutory maximum for the offense must be imposed, absent a departure, and any downward departure cannot exceed the statutory maximum.
Albert L. Mays was convicted of a third-degree felony and sentenced to 70 months incarceration under the sentencing guidelines, which exceeded the fiv…
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HARRIS, Judge.
In this “hot issue” of the day, Albert L. Mays appeals his sentence imposed under the guidelines but in excess of the statutory maximum. We affirm.
Mays was convicted of a third degree felony and, under the sentencing guidelines, his recommended sentencing range was 50.85 months to 84.75 months incarceration, with a recommended sentence of 67.8 months. Even though generally the statutory limit for a third degree felony is five years, the court sentenced Mays to 70 months incarceration.
Mays recognizes that the sentencing guidelines provide:
If the recommended sentence under the sentencing guidelines exceeds the maximum sentence authorized for the pending felony offenses, the guideline sentence must be imposed, absent a departure. Such downward departure must be equal to or less than the maximum sentence authorized by section 775.082.
Rule 3.703(d)(26), Fla.R.Crim.Pro.
Mays contends, however, that since the five-year statutory limitation is ivithin the recommended sentencing range, the above-cited rule does not apply. But that is not the test. Clearly the sentencing range, or at least a portion of it that is available to the sentencing judge, exceeds the statutory maximum and takes the sentencing outside the limitation imposed by the general sentencing statute. This issue has been ably decided by the Third District in Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997), and we concur with that court’s reasoning.
AFFIRMED.
DAUKSCH and COBB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Mays v. State, 717 So. 2d 515 (Fla. 1998)…ties they impose.” Carawan v. State, 515 So. 2d 161, 165 (Fla.1987), superseded by statute on other grounds, § 775.021(4), Fla. Stat. (1989). In each of the cases before us — Myers; Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997); Mays v. State, 693 So. 2d 52 (Fla. 5th DCA 1997); and Wilkins v. State, 693 So. 2d 62 (Fla. 5th DCA 1997) — the total sentence points on the guidelines scoresheet resulted in a recommended sentence in excess of the [*517] statutory maximum.5 The Fourth District in Myers agreed…1 / 2
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Myers v. State, 696 So. 2d 893 (Fla. 4th DCA 1997)…921.0014(2), and certainly no uncertainty of the kind forbidden by article I, section 17, of the Florida Constitution. The state calls our attention to the recent decisions in Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997); and Mays v. State, 693 So. 2d 52 (Fla. 5th DCA 1997), and suggests thereby that the sentence in this case was proper. In Martinez the court considered on motion for rehearing virtually the same issue we confront in this case. There is an important difference in that the recommended…1 / 2
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Floyd v. State, 707 So. 2d 833 (Fla. 1st DCA 1998)…ximum. As the court explained in Martinez v. State, 692 So. 2d 199, 201 (Fla. 3d DCA 1997) “the legislative intent is to allow the trial court the full use of the recommended range unencumbered by the ordinary legal maximum.” See also Mays v. State, 693 So. 2d 52 (Fla. 5th DCA 1997). In the present case, the six-year sentences were above the statutory maximum for the offenses but within the sentencing guidelines range. Hence, section 921.001(5) applies to the case and the sentences are legal. Although the s…
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- Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997)