WILLIAM DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Davis pled nolo contendere to sexual battery and lewd assault charges and was sentenced to ten years imprisonment plus ten years probation. He appealed on the ground that his sentence exceeded the statutory maximum for a second-degree felony, but the court affirmed, holding that trial courts have discretion to sentence within the guidelines range even if it exceeds the statutory maximum.
The sentence is not an illegal sentence and does not constitute fundamental error. Trial courts are authorized under chapter 921 to sentence a defendant to any term within the discretionary range established by the guidelines, even if the term exceeds the statutory maximum, and such sentences are not subject to appeal without prior preservation.
[1] A sentencing error is not preserved for appellate review when a defendant pleads nolo contendere and neither objects to the sentence at the time of sentencing nor files a…
[2] A sentence within the discretionary range, as determined by sentencing guidelines, is not an illegal sentence even if it exceeds the statutory maximum.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a trial court is authorized under chapter 921 to sentence a defendant to any term within the discretionary range, i.e., 25 percent increase and decrease from the median recommended sentence, even if the term is greater than the statutory maximum”
Establishes the core legal principle that sentencing within the guidelines range is lawful even if it exceeds the statutory maximum
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Join FLexlaw to unlock all legal intelligenceDavis pled nolo contendere to three counts of sexual battery on a person less than twelve years old and one count of lewd assault under Florida Statut…
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PER CURIAM.
Appellant, William Davis, pled nolo conten-dere to three counts of sexual battery on a person less than twelve years old and one count of lewd assault. He challenges the sentence of ten years imprisonment followed by ten years of probation for the lewd assault conviction.
Florida Rule of Appellate Procedure 9.140(b)(2)(B) provides that, in order to properly preserve a sentencing error, a defendant who pleads guilty or nolo contendere must object at the time of sentencing or file a motion to correct the sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). Appellant neither objected to his sentence at the time of sentencing nor filed a motion to correct it afterwards. Consequently, he is precluded from raising this sentencing error for the first time on appeal. See Hyden v. State, 715 So. 2d 960, 23 Fla. L. Weekly D1342 (Fla. 4th DCA 1998); Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998), review granted, No. 92,435, 718 So. 2d 171 (Fla. June 19,1998).
Appellant contends, however, that because the sentence imposed on the lewd assault count, a violation of Florida Statute § 800.04(1) (1997), exceeds the statutory maximum of fifteen years for a second degree felony, Florida Statute § 775.082(3)(c) (1997), it is an illegal sentence reviewable at any time as fundamental error. See Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998) (en banc).
We find that the sentence imposed in this case is not an illegal sentence and, thus, does not constitute fundamental error so as to avoid the preservation requirements of Florida Rule of Appellate Procedure 9.140(b)(2)(B). The Florida Supreme Court recently determined in Mays v. State, 717 So. 2d 515, 23 Fla. L. Weekly S387 (Fla.1998) and State v. Myers, 713 So. 2d 1013, 23 Fla. L. Weekly S400 (Fla.1998) that a trial court is authorized under chapter 921 to sentence a defendant to any term within the discretionary range, i.e., 25 percent increase and decrease from the median recommended sentence, even if the term is greater than the statutory maximum. Appellant’s split sentence totaling twenty years was within the discretionary range of 19 years to 31^ years reflected on his guidelines seoresheet. Under Mays and Myers, this is not an illegal sentence and there has been no fundamental error. Accordingly, we affirm the sentence imposed upon appellant in this case.
AFFIRMED.
DELL, SHAHOOD 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)
- Hyden v. State, 715 So. 2d 960 (Fla. 4th DCA 1998)
- State v. Myers, 713 So. 2d 1013 (Fla. 1998)
- Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998)