CLYDE R. MCDANIEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this direct appeal, the court reversed a battery conviction sentence because it exceeded the statutory maximum of 5 years when combining jail time, probation, and credit for previously served community control. The court held that illegal sentences constitute fundamental error that may be raised on appeal without prior preservation.
The sentence was illegal and constituted fundamental error reversible on appeal without prior preservation. The trial court must resentence McDaniel within the statutory maximum, giving credit for time served on community control, so that the combination of all sanctions does not exceed 5 years.
[1] An illegal sentence, even if unpreserved, constitutes fundamental error and may be raised on direct appeal.
[2] When revoking community control and imposing a new sentence including probation, the trial court must credit time previously served on community control.
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Join FLexlaw to unlock all legal intelligence“the sentence of 15 months jail plus approximately 45 months of probation [August 7, 1996 — April 21, 2001] plus 4 months credit for community control exceeds the maximum allowable sentence by 4 months”
Establishes the mathematical basis for finding the sentence illegal
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Join FLexlaw to unlock all legal intelligenceMcDaniel was sentenced to community control beginning April 22, 1996. On August 7, 1996, the trial court revoked and terminated the community control …
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SCHEMER, Associate Judge
In this direct appeal, the appellant contends that his sentence for battery on a law enforcement officer was illegal because it exceeded the statutory maximum sentence of 5 years. On August 7, 1996, the trial court revoked and terminated the appellant’s sentence of community control which began April 22, 1996, and orally pronounced a sentence of 15 months jail followed by probation through April 21, 2001. Despite this oral pronouncement, the written order of probation reflects a sentence of 15 months jail followed by probation through August 21, 2001.1 Since the sentence imposed by the trial court following the revocation of community control included a period of probation, the trial court must give credit for the time previously served on community control and the combination of new sanctions imposed together with the credit for community control must not exceed the maximum for the underlying offense. Waters v. State, 662 So. 2d 332 (Fla.1995) Consequently, the sentence of 15 months jail plus approximately 45 months of probation [August 7, 1996 — April 21, 2001] plus 4 months credit for community control exceeds the maximum allowable sentence by 4 months.
In response, the state contends that this issue was not preserved for review under section 924.051, Florida Statutes, since the appellant did not file a 3.800(b) motion to correct the error. However when, as here, the error results in an illegal sentence, the error is fundamental and may be raised on appeal. See 924.051(3), Florida Statutes (Supp.1996); Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997) (holding that “section 924.051, Fla. Statutes (Supp.1996) does not preclude an appellate challenge to an unpreserved error that constitutes fundamental error”). Accordingly, the appellant’s sentence for battery on a law enforcement officer is reversed and remanded to the trial court to resentence appellant within the statutory maximum.
Reversed and Remanded.
MINER and ALLEN, JJ., concur. . Although we take no action on the following unpreserved errors, we point out for the benefit of the trial court which may wish to correct them that in addition to the error in the probation order, the following errors exist in the written judgment and sentence: 1) the offenses that appellant was convicted of are classified incorrectly; and 2) the sentence on all counts is listed as fifteen months in prison followed by five years probation which is a seventy-five month sentence rather than the sixly month (legal) sentence orally pronounced.
Cases With Similar Vibessemantic neighbors from the corpus
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Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)…ions leave no doubt that, at the least, they consider illegal sentences to be fundamental error, and reviewable as such. See Nelson v. State, 719 So. 2d 1230, 23 Fla. L. Weekly D2241 (Fla. 1st DCA 1998) (general division en bane); McDaniel v. State, 704 So. 2d 686 (Fla. 1st DCA 1997), opinion corrected, 706 So. 2d 923 (Fla. 1st DCA 1998); Jordan v. State, 23 Fla. L. Weekly D2130, 728 So. 2d 748 (Fla. 3d DCA 1998). As we will explain in depth below, we disagree with Maddox. In our view, certain sentencing erro…
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Henderson v. State, 720 So. 2d 1121 (Fla. 4th DCA 1998)…tted and thus constitutes an illegal sentence. See State v. Mancino, 705 So. 2d 1379, 1381 (Fla.1998). A sentence which exceeds the statutory maximum for the offense may be raised at any time because such error is fundamental. See McDaniel v. State, 704 So. 2d 686 (Fla. 1st DCA 1997); § 924.051(3), Fla. Stat. (1997). “Even with a defendant’s assent, the court is without jurisdiction to impose a sentence in excess of the statutory maximum.” Collins v. State, 697 So. 2d 1305, 1307-08 (Fla. 4th DCA 1997). Here,…
Authorities Cited
- Waters v. State, 662 So. 2d 332 (Fla. 1995)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)