JOHN HINDENACH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Hindenach appealed his DUI sentence of 80 months, which exceeded both the statutory maximum of 5 years and the guidelines-recommended 71 months. The Fourth District Court of Appeal reversed and remanded, holding that a trial court cannot enhance a sentence that already exceeds the statutory maximum, even within the guidelines range.
The court held that a trial court may not enhance a recommended sentence that already exceeds the statutory maximum. The sentence must be reversed and the defendant resentenced to the sentence recommended by the guidelines scoresheet.
[1] A court may not enhance a recommended sentence that already exceeds the statutory maximum penalty for an offense by a further extension within the sentencing guidelines.
[2] An illegal sentence, defined as one exceeding the maximum period set forth by law for a particular offense, may be raised at any time, including for the first time on dir…
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Join FLexlaw to unlock all legal intelligence“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”
States the core holding that sentencing courts cannot exceed statutory maximums even when applying guidelines enhancements
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Join FLexlaw to unlock all legal intelligenceHindenach pleaded guilty to DUI with impairment causing bodily injury under a sentencing agreement within the guidelines. The sentencing scoresheet re…
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FARMER, Judge.
Defendant pleaded guilty to DUI with impairment causing bodily injury under an agreement to be sentenced within the guidelines. The penalty statute provides a maximum sentence for this conviction of 5 years.1 His sentencing scoresheet, however, showed a recommended sentence of 71 months. The trial judge enhanced the recommended sentence within the guidelines range of 25% and sentenced him to 80 months in prison. This appeal fohows.
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 scoresheet.2 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 RECOMMENDED SENTENCE UNDER GUIDELINES.
KLEIN and STEVENSON, JJ., concur. . See §§ 316.193(3)(c)2 and 775.082(3)(d), Fla. Stat. (1995).
. Defendant did not raise this issue in the trial court, and thus the state argues that he is barred from doing so here by Florida Rule of Appellate Procedure 9.140(d) (“A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal.”). We disagree. If defendant is correct then his sentence is an illegal sentence within the meaning of Davis v. State, 661 So. 2d 1193, 1196 (Fla.1995) ("[A]n illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines.”), it may be raised at any time, even for the first time on direct appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hindenach v. State, 807 So. 2d 739 (Fla. 4th DCA 2002)…tence and this court reversed the sentence finding that the trial court could not enhance a recommended sentence that already exceeds the maximum. set by the penalty statute by a further extension within the guidelines range. See Hindenach v. State, 708 So. 2d 336 (Fla. 4th DCA 1998). The state filed a Notice of Discretionary Review with the supreme court which was granted and on review, the supreme court quashed this court’s decision relying on its decision in Mays v. State, 717 So. 2d 515 (Fla.1998). See St…
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State v. Hindenach, 720 So. 2d 242 (Fla. 1998)…SHAW, Justice. We have for review Hindenach v. State, 708 So. 2d 336 (Fla. 4th DCA 1998), wherein the district court certified conflict with Mays v. State, 693 So. 2d 52 (Fla. 5th DCA 1997). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We have since approved the district court decision in Mays. See Mays v. S…
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Payne v. State, 720 So. 2d 555 (Fla. 4th DCA 1998)…ition by this court in Myers v. State, 696 So. 2d 893 (Fla. 4th DCA), rev. granted, 703 So. 2d 477 (Fla.1997); see also O’Neal v. State, 707 So. 2d 1190 (Fla. 4th DCA 1998); Thompson v. State, 707 So. 2d 1191 (Fla. 4th DCA 1998); Hindenach v. State, 708 So. 2d 336 (Fla. 4th DCA 1998); Solomon v. State, 23 Fla.L.Weekly D864, 720 So. 2d 1084 (Fla. 4th DCA 1998). In Myers, we held that a defendant’s sentence may exceed the statutory maximum when the recommended guidelines sentence exceeds the statutory maximum.…
Authorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- 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)