PAUL ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Ortiz appealed his sentence for interfering with custody (a third-degree felony) after pleading no contest. The court found his sentence of 65.6 months incarceration plus 5 years probation was illegal because it exceeded both the statutory maximum for a third-degree felony and the allowable deviation from the sentencing guidelines.
The court held the sentence illegal because it exceeded both the statutory maximum for a third-degree felony and the allowable deviation from the recommended guidelines. The court rejected the waiver argument, finding that the legality of a sentence is a constitutional issue that cannot be waived and can be challenged at any time.
[1] A sentence that exceeds the statutory maximum authorized by law is illegal and may be challenged at any time.
[2] A defendant who pleads no contest to a criminal charge may appeal constitutionally required issues, including the legality of a sentence.
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Join FLexlaw to unlock all legal intelligence“A sentence which exceeds the maximum authorized by law is illegal and can be challenged at any time.”
Establishes that illegality of sentence is a constitutional issue that cannot be waived regardless of failure to object at sentencing
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Join FLexlaw to unlock all legal intelligenceOrtiz pleaded no contest to interfering with custody, a third-degree felony, and received a sentence of 65.6 months incarceration followed by 5 years …
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W. SHARP, Judge.
This is an Anders case in which we requested additional briefing concerning the legality of the sentence Ortiz received after pleading no contest to interfering in custody,1 a third degree felony. For this crime, Ortiz received a prison sentence of 65.6 months incarceration, followed by five years probation, for a total penalty of 125.6 months. That sentence clearly exceeds the statutory maximum of five years for a third degree felony. See section 775.082, Fla. Stat. It also exceeds plus or minus 25 percent of the recommended state prison term — which on the upper side was 109.3 months. We agree with Ortiz that this sentence was illegal. See Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997).
The state argues that Ortiz waived this issue by failing to expressly object to the sentence or file a motion to correct it, relying on Rangel v. State, 692 So. 2d 277 (Fla. 5th DCA 1997) and section 924.051(3), Fla. Stat., effective July 1, 1996. The Florida Supreme Court has held that section 924.051(4) cannot be construed to prohibit a defendant who enters a guilty or no contest plea to a criminal charge from appealing the constitutionally required issues, pursuant to Robinson v. State, 373 So. 2d 898 (Fla.1979). See Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996). The legality of a sentence is one of those issues. A sentence which exceeds the maximum authorized by law is illegal and can be challenged at any time. See Davis v. State, 661 So. 2d 1193 (Fla.1995).
Whether Ortiz’ sentence exceeds the legal maximum because of the combined periods of incarceration and probation is a close question. Ortiz argues that section 921.001(5), Fla. Stat., does not authorize a court to impose any probation time, in addition to the recommended prison sentence, when that sentence exceeds the statutory maximum, because there is no mention of probation in the statute. The statute merely provides that if the recommended sentence exceeds the statutory maximum, a sentence under the guidelines must be imposed.
In general, the guidelines only limit the prison term to be imposed. However, Rule 3.702(d)(19), Florida Rules of Criminal Procedure, provides that if a split sentence is imposed, the incarcerative portion of the sentence must not deviate more than 25 percent from the recommended prison sentence, and the total sanction of incarceration and community control or probation shall not exceed the term provided by general law “or the recommended sentence where the provisions of subsection 921.001(5) apply”. This last phrase authorizes a split sentence which exceeds the statutory maximum so long as the combined terms of incarceration and probation do not exceed the guideline recommended sentence. If this limitation does not apply to split sentences exceeding the statutory maximum, the rule would not have referred to section 921.001(5).
Ortiz’ sentence for interfering in custody is concurrent with an identical sentence he received for lewd and lascivious behavior in violation of section 800.04, Fla. Stat. That crime is a second degree felony, and thus the sentence is within the maximum statutory time allowable, even when combining the prison term with the probationary term. However, that does not render the sentence discussed above “legal”. See Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990).
We affirm Ortiz’ convictions for both criminal offenses and the sentence for the second degree felony; but we quash the sentence for the third degree felony and remand for entry of a legal sentence.
AFFIRMED in part; QUASH sentence for third degree felony and REMAND for resentencing.
GRIFFIN, C.J., and ANTOON, J., concur. . § 787.03, Fla. Stat.
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…tal error in the sentencing context, contrary to the statements made in Medberry v. State, 699 So. 2d 857 (Fla. 5th DCA 1997), Saldana v. State, 698 So. 2d 338 (Fla. 5th DCA 1997), Rangel v. State, 692 So. 2d 277 (Fla. 5th DCA 1997), Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997) and Bisson v. State, 696 So. 2d 504 (Fla. 5th DCA 1997). Nor will this court address illegal [*621] sentences on direct appeal, unless the issue has been preserved for review either by objection in the trial court or by means of…
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Maynard v. State, 763 So. 2d 480 (Fla. 4th DCA 2000)…probation for a singular offense exceeds the maximum sentence authorized by law, the trial court imposed separate sentences. Cf [*482] State v. Holmes, 360 So. 2d 380 (Fla.1978); Weidner v. State, 559 So. 2d 705 (Fla. 4th DCA 1990); Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997). The trial court did not impose a probationary split sentence1 for any one offense. Rather, it imposed a sentence for each offense notwithstanding that the offenses are combined in one scoresheet. See Weiner v. State, 562 So. 2d…
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Geddes Willis v. State, 736 So. 2d 1251 (Fla. 2d DCA 1999)…s, Willis’ actual sentence exceeds both the statutory maximum and the maximum permitted by the guidelines. When a sentence exceeds both the statutory maximum and the maximum permitted by the guidelines, it is an illegal sentence. See Ortiz v. State, 696 So. 2d 916, 917 (Fla. 5th DCA 1997), receded from on other grounds, Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). Consequently, we must reverse the trial court’s sentence and remand for imposition of a new sentence. When the trial court sentenced Will…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Deno S. Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997)
- Oliveri v. State, 692 So. 2d 277 (Fla. 5th DCA 1997)
- Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990)