ELMARIO CLAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elmario Clay challenges his habitual felony offender sentence for cocaine trafficking, arguing it violates Florida law requiring sentencing under the guidelines. The court reverses, finding the sentence illegal under Stanford v. State, but remands for resentencing negotiations rather than vacating due to Clay's negotiated plea.
The habitual offender sentence is illegal because the statute expressly mandates sentencing under the guidelines. However, because Clay received a negotiated plea, the sentence is not vacated but remanded for resentencing within statutory requirements, with the state given an opportunity to agree to resentencing or Clay given the opportunity to withdraw his plea.
[1] A sentence imposed in violation of a statute mandating sentencing pursuant to guidelines is fundamental error and may be raised for the first time on appeal.
[2] A statute expressly mandating sentencing pursuant to guidelines for a specific offense renders a habitual offender sentence illegal for that offense.
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Join FLexlaw to unlock all legal intelligence“shall be sentenced pursuant to the sentencing guidelines”
The statute's express mandate requiring guideline sentencing for this cocaine trafficking offense, making the habitual offender sentence illegal
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Join FLexlaw to unlock all legal intelligenceClay pled guilty to trafficking cocaine (28-200 grams) in violation of Florida Statutes section 893.135(l)(b)1.a. He was sentenced as a habitual felon…
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PER CURIAM.
Elmario Clay challenges his sentence as a habitual felony offender imposed after he pled guilty to trafficking cocaine (more than 28 grams, but less than 200 grams), a violation of section 893.135(l)(b)l.a., Florida Statutes. Clay argues that the sentence is illegal on the authority of Stanford v. State, 706 So. 2d 900 (Fla. 1st DCA 1998), because he was sentenced as a habitual offender, rather than under the sentencing guidelines. Although this issue was not raised below, a sentence that exceeds the statutory maximum is fundamental error and can be raised for the first time on appeal. See id. at 901; Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998); see also Rainey v. State, 741 So. 2d 1207 (Fla. 1st DCA 1999). On the authority of Stanford, we reverse.
The habitual offender sentence imposed on Clay is an illegal sentence because section 893.135(l)(b)l.a. expressly mandates that persons guilty of trafficking in cocaine, where the quantity involved is 28 grams or more, but less than 200 grams, “shall be sentenced pursuant to the sentencing guidelines.... ” See Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999); Stanford, 706 So. 2d at 901-02. However, because Clay was sentenced pursuant to a negotiated plea, the sentence is not vacated; but the cause is remanded to the trial court where the state shall be given an opportunity to agree to resentencing within the requirements of section 893.135(l)(b)l.a. Wright, 743 So. 2d at 104. Should the state not agree to resentencing, Clay should be afforded his opportunity to withdraw his plea and the matter may proceed to trial. Id. Of course, if Clay does withdraw his plea, the state is free to proceed to trial on all charges filed against Clay, including charges which had been dropped pursuant to the negotiated plea.
REVERSED and REMANDED.
ALLEN, WEBSTER AND VAN NORTWICK, • JJ., CONCUR.
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Citator
Cited By (18 total)
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Rosalind Virgil v. State, 884 So. 2d 373 (Fla. 2d DCA 2004)…lines.1 See Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999). Therefore, Virgil could not have been sentenced as a habitual felony offender on these two trafficking offenses. See Fortner v. State, 779 So. 2d 462 (Fla. 2d DCA 2000); Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000). This court ordered the State to respond, and the State conceded that the sentences in these two cases are illegal. Accordingly, we remand for the trial court to resentence Virgil on the trafficking offenses in case numbers 95-46…
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Bryant v. State, 760 So. 2d 1034 (Fla. 5th DCA 2000)…hall be sentenced pursuant to the sentencing guidelines and pay a fine of $50,000.00.” This language places the lesser trafficking offenses under the guidelines and removes them from sentencing under the habitual offender statute. See Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000). REVERSED and REMANDED for re-sentencing. DAUKSCH and GRIFFIN, JJ., concur.…
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Wallen v. State, 877 So. 2d 737 (Fla. 5th DCA 2004)…, 766 So. 2d 457 (Fla. 5th DCA 2000) (holding where defendant received illegal sentence under unconstitutional guidelines pursuant to a plea bargain, state has option of proceeding to trial or agreeing to have legal sentence imposed); Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000) (holding if state does not agree to re-sentencing defendant to legal sentence, state should be allowed to withdraw plea and matter may proceed to" trial on original charges). ‘SENTENCE VACATED IN PART; REMANDED. PETERSON, GRI…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Stanford v. State, 706 So. 2d 900 (Fla. 1st DCA 1998)
- Wautara Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999)
- Rainey v. State, 741 So. 2d 1207 (Fla. 1st DCA 1999)