MICHAEL VAN THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Illegal sentences can be raised for the first time on appeal, and habitual offender sentences based on prior offenses too remote from the instant conviction are illegal.
Defendant was convicted of sexual battery and attempted sexual battery. The trial court sentenced him as a habitual offender. The defendant argued on …
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PER CURIAM.
We have for review on direct appeal the convictions and sentences of Michael Van Thompson (Thompson) for two felony offenses. We affirm the convictions and reverse the sentences.
A jury found Thompson guilty of sexual battery (by using a gun and threatening to use deadly force), and attempted sexual battery, as charged. Thompson committed these crimes in Leon County against the same victim on two different dates: between February 1 and March 1, 1995, and on July 13, 1995. The trial judge sentenced Thompson to prison for sixty years on count one, and ten years on count two, as an habitual offender, to run consecutively.
This court holds that an illegal sentence is fundamental error and thus can be raised for the first time on appeal, despite the failure to raise the issue before the trial judge. Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998). Thompson argues that his sentences are illegal because his prior offenses do not qualify for habitual offender sentencing, being more than five years before his instant rape conviction; the State concedes as much. Thompson’s habitual felony offender sentences hence must be vacated, and this case is remanded for resentencing. Nelson.
We affirm Thompson’s convictions despite a victim outburst at the trial, for the single outburst did not “vitiate the entire trial.” Reaves v. State, 639 So. 2d 1, 5 (Fla.1994) (affirming the imposition of the death penalty, despite a number of harmless trial errors).
The trial judge correctly exercised his discretion in denying Thompson’s motion for mistrial; we therefore affirm Thompson’s convictions. Thompson’s habitual felony offender sentences however must be vacated, and we remand for resentencing.
AFFIRMED in part and REVERSED in part.
BOOTH, LAWRENCE and DAVIS, JJ., CONCUR.
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Cited By
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van Thompson v. State, 771 So. 2d 593 (Fla. 1st DCA 2000)…entences in both cases were vacated for lack of prior qualifying offenses, and the cases were remanded for re-sentencing. See section 775.084(1)(a)2, Florida Statutes (1995); Thompson v. State, 732 So. 2d 1212 (Fla. 1st DCA 1999); Thompson v. State, 726 So. 2d 351 (Fla. 1st DCA 1999). The appellant served approximately four years in prison prior to the September 1999 re-sentencing. In Circuit Court Case No. 95-2472, the trial court re-sentenced the appellant to 12 years on Count One and to 5 years on Count…
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Van Thompson v. State, 732 So. 2d 1212 (Fla. 1st DCA 1999)…BARFIELD, C.J. Appellant’s conviction is AFFIRMED. For the same reason given in our prior opinion in Thompson v. State, 726 So. 2d 351 (Fla. 1st DCA 1999), his habitual felony offender sentence is VACATED and the case is REMANDED to the trial court for resentencing. BOOTH and WOLF, JJ., CONCUR.…
Authorities Cited
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Reaves v. State, 639 So. 2d 1 (Fla. 1994)