MARTHA ANN MASON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Martha Ann Mason appealed her criminal conviction after entering a plea of nolo contendere to four counts. The appellate court affirmed the conviction but remanded for correction of a sentencing discrepancy where the written judgment imposed a sentence exceeding the statutory maximum for one count, despite the oral pronouncement being legal.
An illegal sentence exceeding the statutory maximum constitutes fundamental error that may be addressed on direct appeal without prior objection in the trial court. The court remanded for correction of the written sentencing order to conform to the lawful oral pronouncement.
[1] An illegal sentence that exceeds the maximum period authorized by law for a particular offense constitutes fundamental error.
[2] Fundamental error in sentencing may be corrected at any time, even if not preserved by objection in the trial court.
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Join FLexlaw to unlock all legal intelligence“[A]n illegal sentence is one that can be addressed at any time-[and] is one that exceeds the maximum period set forth by law for a particular offense”
Establishes the definition and scope of illegal sentences that constitute fundamental error
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Join FLexlaw to unlock all legal intelligenceMason entered a plea of nolo contendere to four counts: three third-degree felonies and one second-degree misdemeanor. The circuit court orally senten…
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PER CURIAM.
In this direct criminal appeal, the public defender has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and appellant has filed a brief on her own behalf. Appellant entered a plea of nolo contendere to four counts, the first three involving third degree felonies and the fourth involving a second degree misdemeanor. We have reviewed the record and affirm the judgment as well as the departure sentence imposed by the circuit court.
Nevertheless, as the public defender asserts, the circuit court orally sentenced appellant to a term of five years’ imprisonment on Count I, a consecutive term of five years’ probation on Count II, and a consecutive term of five years’ probation on Count III.
Thus, the court intended to sentence appellant to five years in prison, followed by ten years of probation.
The record reveals, however, that the circuit court’s written order imposes five years’ imprisonment for Count I as well as five years’ probation for Count I, five years’ probation for Count II, and nothing for Count III. The sentence on Count I exceeds the five-year term of imprisonment authorized by law, section 775.082(3)(d), Florida Statutes (1995), and therefore constitutes fundamental error. See Davis v. State, 661 So. 2d 1193, 1196 (Fla.1995) (“[A]n illegal sentence is one that can be addressed at any time-[and] is one that exceeds the maximum period set forth by law for a particular offense-”); State v. Hewitt, 702 So. 2d 633, 635 (Fla. 1st DCA 1997) (An illegal sentence “constitutes error as a matter of law which is fundamental error that can be corrected at any time without an objection.”); Sanders v. State, 698 So. 2d 377, 378 (Fla. 1st DCA 1997) (“[IIllegal sentences necessarily constitute fundamental error, and may therefore be challenged for the first time on direct appeal.”); Moore v. State, 623 So. 2d 795, 797 (Fla. 1st DCA 1993) (“A trial court is without authority to extend a period of probation beyond the maximum permissible sentence for the underlying offense.”).
We are aware of the Fifth District Court of Appeal’s recent en banc decision stating that it “will no longer recognize fundamental error in the sentencing context” and will not “address illegal sentences on direct appeal, unless the issue has been preserved for review either by objection in the trial court or by means of a 3.800(b) motion for post-conviction relief.” Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). We are constrained, however, to follow the precedent cited above indicating that sentencing errors resulting in illegal sentences may be raised at any time without preservation in the trial court because such errors amount to fundamental errors.
Accordingly, we remand this case to the circuit court with directions to conform the written probationary order to the court’s oral pronouncements. See Johnson v. State, 701 So. 2d 382, 382-83 (Fla. 1st DCA 1997) (affirming and remanding with directions that trial court correct written judgment and sentence to reflect oral pronouncement because inconsistencies between oral pronouncement and written judgment and sentence, which reflected conviction on more counts and different sentence, constituted fundamental errors).
MINER, KAHN and WEBSTER, JJ., concur.
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Mizell v. State, 716 So. 2d 829 (Fla. 3d DCA 1998)…ition that an error of this kind is a fundamental one to which, by the terms of the underlying statute, § 924.061, Fla. Stat. (Supp.1996), the rule does not apply. Accord Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998)(en banc); Mason v. State, 710 So. 2d 82 (Fla. 1st DCA 1998). The state ripostes with Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)(en banc), review granted, 718 So. 2d 169 (Fla.1998)(table), which says that it does. See also Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998); Perry…
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…prior record. See id. . Ch. 96-248, Laws of Fla. .This court, the First District, and the Fourth District have indicated that the appellate court may entertain preserved errors and fundamental errors. See Pryor, 704 So. 2d at 217; Mason v. State, 710 So. 2d 82, 82-83 (Fla. 1st DCA 1998); Perry, 714 So. 2d 563, 23 Fla. L. Weekly at D1570; Hyden, 715 So. 2d 960, 23 Fla. L. Weekly at D1343. While avoiding the term "fundamental error," the Second District takes the position that it may correct (in addition t…
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COX v. State, 711 So. 2d 1323 (Fla. 5th DCA 1998)…ly held there is no fundamental error in sentencing. Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). The Fourth District certified conflict with Maddox on this issue in Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998); c.f., Mason v. State, 710 So. 2d 82 (Fla. 1st DCA 1998). AFFIRMED. COBB and W. SHARP, JJ., concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)
- Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993)
- State v. Hewitt, 702 So. 2d 633 (Fla. 1st DCA 1997)
- Johnson v. State, 701 So. 2d 382 (Fla. 1st DCA 1997)