MIGUEL FRANCISCO-AUGUSTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's consecutive DUI manslaughter sentences totaling 286 months exceeded the statutory maximum and guidelines range, so the sentence was vacated and remanded for resentencing not to exceed 259.2 months.
A sentence exceeding both the statutory maximum for the primary offense and the guidelines range is illegal and must be vacated even if no motion to correct was filed at trial.
[1] An illegal sentence exceeding the statutory maximum and sentencing guidelines range is cognizable for the first time on appeal and need not have been challenged by motion…
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Join FLexlaw to unlock all legal intelligence“this appears to be an illegal sentence which is cognizable for the first time on appeal”
Court explaining that the sentence exceeding statutory maximum can be raised on appeal despite lack of trial-level motion
Miguel Francisco-Augustin was convicted of two counts of DUI manslaughter arising from the same criminal episode and sentenced to consecutive sentence…
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POLEN, Judge.
Miguel Francisco-Augustin appeals for the second time his consecutive sentences of fifteen years and eight years, respectively, for two counts of DUI manslaughter arising from the same criminal episode. In Francisco-Augustin v. State, 695 So. 2d 1299 (Fla. 4th DCA 1997), we remanded for resentencing because the defendant’s guidelines score-sheet showed an erroneous maximum total of 286 months (23.8 years), when the maximum should have been 259.2 months (21.6 years). On remand, the court again sentenced him to 286 months imprisonment.
The defendant’s sentence exceeds both the statutory maximum for his primary offense and the guidelines range. Even though he did not file a motion to correct the sentence at the trial level, this appears to be an illegal sentence which is cognizable for the first time on appeal. Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998). Since the trial court imposed the exact same sentence as before, and it was not done as a guidelines departure, we vacate his sentence and remand the case for sentencing, not to exceed 259.2 months. See State v. Myers, 713 So. 2d 1013 (Fla.1998); Mays v. State, No. 90,826, 717 So. 2d 515 (Fla.1998).
REVERSED and REMANDED in accordance with this opinion.
STEVENSON and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Mays v. State, 717 So. 2d 515 (Fla. 1998)
- Dameion Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998)
- State v. Myers, 713 So. 2d 1013 (Fla. 1998)
- King v. State, 695 So. 2d 1299 (Fla. 4th DCA 1997)