JAMES THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court improperly enhanced a guideline-recommended sentence that already exceeded the statutory maximum for cocaine possession; sentence reversed and remanded for resentencing to the guideline recommendation.
A trial court may not enhance a recommended sentence within the guidelines range when that recommendation already exceeds the statutory maximum penalty for the offense.
[1] A trial court may not enhance a guideline-recommended sentence within the guidelines range when the recommendation already exceeds the statutory maximum penalty for the o…
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Join FLexlaw to unlock all legal intelligenceThompson was convicted of possession of cocaine, a third-degree felony with a statutory maximum of 5 years. His sentencing guidelines scoresheet recom…
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FARMER, Judge.
A jury convicted defendant of possession of cocaine, a third degree felony. The penalty statute provides a maximum sentence for this conviction of 5 years.1 His-sentencing score-sheet, however, showed a recommended sentence of 68.2 months. The trial judge enhanced the recommended sentence within the guidelines range of 25% and sentenced him to 79 months in prison. This appeal follows.
We decided the issue raised in this appeal in our previous decision in Myers v. State, 696 So. 2d 893 (Fla. 4th DCA), rev. granted, 703 So. 2d 477 (Fla.1997). There we held that the court may not enhance a recommended sentence that already exceeds the maximum set by the penalty statute by a further extension within the guidelines range. Myers requires that we reverse the sentence in this case and remand with instructions to resen-tence defendant to the sentence recommended by the guidelines seoresheet. As we did in Myers, we certify conflict with Mays v. State, 693 So. 2d 52 (Fla. 5th DCA), rev. granted, 700 So. 2d 686 (Fla.1997); Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA), rev. dismissed, 697 So. 2d 1217 (Fla.1997); and Green v. State, 691 So. 2d 502 (Fla. 5th DCA), rev. granted 699 So. 2d 1373 (Fla.1997); and with the subsequently issued decision in Floyd v. State, 707 So. 2d 833 (Fla. 1st DCA 1998).
REVERSED AND REMANDED FOR RESENTENCING TO SENTENCE RECOMMENDED UNDER GUIDELINES.
DELL and SHAHOOD, JJ., concur. . § 775.082(3)(d). Fla. Stat. (1995).
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Citator
Cited By (12 total)
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Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999)…719 So. 2d 1258 (Fla. 1st DCA 1998). However, an appellate court may exercise its certiorari jurisdiction to review a case where the motion was denied for, among other reasons, lack of jurisdiction based on the motion’s untimeliness. Brown v. State, 707 So. 2d 1191 (Fla. 2d DCA 1998); Roauer v. State, 697 So. 2d 1303 (Fla. 2d DCA 1997). The record reveals Appellant timely filed a Motion to Enlarge Time, requesting an extension of time to March 25,1999, in which to file a Motion for Modification or Reduction…
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Knafel v. State, 714 So. 2d 1195 (Fla. 2d DCA 1998)…uled upon such a motion, as was the case in the trial court. This court may exercise its cer-tiorari jurisdiction to review unsuccessful motions to mitigate if they question matters not wholly within the trial court’s discretion. See Brown v. State, 707 So. 2d 1191 (Fla. 2d DCA 1998). We note that Knafel’s motion was filed six months after the sentence was imposed of which he complains, and, as no appeal was taken from that sentence, his motion was untimely filed in the trial court. See Fla. R.Crim. P. 3.800(c…
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State v. Swett, 772 So. 2d 48 (Fla. 5th DCA 2000)…See Knafel v. State, 714 So. 2d 1195 (Fla. 2d DCA 1998). Thus, where the circuit court erroneously denies a motion for mitigation on the ground that it is untimely, certiorari may be employed to quash the order of denial. See, e.g., Brown v. State, 707 So. 2d 1191 (Fla. 2d DCA 1998); Arnold v. [*51] State, 621 So. 2d 503 (Fla. 5th DCA .1993). Conversely, where a trial court is without jurisdiction due to the untimely consideration of a motion for mitigation and erroneously grants mitigation, an appellate cour…
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
- Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997)
- Myers v. State, 696 So. 2d 893 (Fla. 4th DCA 1997)
- Mays v. State, 693 So. 2d 52 (Fla. 5th DCA 1997)
- Floyd v. State, 707 So. 2d 833 (Fla. 1st DCA 1998)
- Deno S. Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997)