WILLIE A. DEAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A seventeen-year sentence for a second-degree felony is illegal and can be raised on direct appeal even without objection below.
Dean was convicted of a second-degree felony and sentenced to seventeen years, exceeding the fifteen-year statutory maximum. He did not object at sent…
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PER CURIAM.
Willie A. Dean (Dean), in this direct appeal, argues that his seventeen-year sentence for a second-degree felony is illegal. We agree and remand for resentencing.
Dean was originally sentenced to prison for nine years, followed by two years of probation, for sexual battery. After violating his probation, he was subsequently sentenced to seventeen years in prison. Dean made no objection at sentencing, and no objection by posttrial motion, despite that his sentencing occurred after the effective date of amendments found in section 924.051, Florida Statutes (Supplement 1996) 1 Dean pleaded to, and was convicted of, a second-degree felony. § 794.011(5), Fla. Stat. (1989) (sexual battery). The statutory maximum sentence for a second-degree felony is fifteen years. § 775.082(3)(c), Fla. Stat. (1989). Dean’s seventeen-year sentence thus is illegal within the meaning of Davis v. State, 661 So. 2d 1193 (Fla.1995). An illegal sentence can be raised in a direct appeal, despite the failure to raise the matter in the sentencing proceeding, or in a motion filed within thirty days of sentencing. Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996). Dean thus must be resentenced within the statutory maximum. Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997).
We accordingly affirm Dean’s adjudication of violation of probation, vacate his sentence, remand for sentencing within the statutory maximum, and deny the State’s motion to dismiss alleging our lack of jurisdiction. Stone v. State, 688 So. 2d 1006 (Fla. 1st DCA 1997).
WEBSTER, MICKLE and LAWRENCE, JJ., concur. . Dean was sentenced on September 24, 1996.
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Thomas v. State, 711 So. 2d 89 (Fla. 1st DCA 1998)…a fundamental nature that can be raised on appeal for the first time. This case is distinguishable from cases where this court has held that sentencing errors which were not preserved could nonetheless be raised by direct appeal. Cf. Dean v. State, 702 So. 2d 1358 (Fla. 1st DCA 1997) (seventeen year sentence for second degree felony was illegal and could be reversed in direct appeal, despite failure to object or to make a motion below to correct the sentence); Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 19…
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Elmquist v. State, 739 So. 2d 1275 (Fla. 1st DCA 1999)…law for his particular offense, see § 775.082(3)(c), Fla. Stat. (1989), and as [*1276] such constitutes an “illegal” sentence which can be challenged for the first time on appeal, see Mason v. State, 710 So. 2d 82 (Fla. 1st DCA 1998); Dean v. State, 702 So. 2d 1358 (Fla. 1st DCA 1997); Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997), we vacate the violation sentence and remand for resentencing. We affirm in all other respects. BOOTH and BENTON, JJ., and SMITH, LARRY G., Senior Judge, concur. . See An…
Authorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Stone v. State, 688 So. 2d 1006 (Fla. 1st DCA 1997)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)