JOSE PADILLA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jose Padilla appealed his sentences for two counts of armed burglary and one count of grand theft of a firearm. The court found a sentencing error on the grand theft count where the trial court improperly imposed a ten-year probation term that exceeded both statutory and guideline maximums, and struck that probation while affirming the remainder of the sentence.
The sentences for armed burglary were legal and affirmed. The grand theft sentence was illegal as to the probation term because adding ten years of probation exceeded both the statutory maximum and the guidelines maximum for a third-degree felony. The probation term was struck while the incarcerative portion of the grand theft sentence was affirmed.
[1] A sentence that exceeds both the statutory maximum and the sentencing guidelines maximum is illegal.
[2] When a recommended sentencing guideline sentence exceeds the statutory maximum for an offense, the trial court must impose a sentence within the recommended guidelines ra…
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“Although the grand theft was a third-degree felony punishable by up to five years in prison, the trial court properly imposed the 87-month sentence, because a trial court must impose a sentence within the sentencing guidelines' recommended range when the recommended sentence exceeds the statutory maximum for the offense.”
Establishes that guidelines can override statutory maximums when guidelines recommend longer sentences
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Join FLexlaw to unlock all legal intelligencePadilla was convicted of two counts of armed burglary under section 810.02(2)(b), Florida Statutes, and one count of grand theft of a firearm under se…
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THREADGILL, Judge.
The appellant, Jose Padilla, appeals sentences imposed against him for two counts of armed burglary, in violation of section 810.02(2)(b), Florida Statutes (1995), a first-degree felony punishable by life imprisonment, and one count of grand theft of a firearm, in violation of section 812.014(2)(c)5., Florida Statutes (1995), a third-degree felony. His attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting no arguable merit. We have reviewed the record and have found a sentencing error. Because the error will not affect the overall length of the appellant’s sentence, we strike the illegal portion of the sentence. We affirm in all other respects.
The sentences on the two counts of armed burglary were legal, because the incarcerative portions of the sentences were within the recommended guidelines range, and the overall sentences were within the statutory máximums for the offenses. The sentence on the grand theft charge was illegal, however, because it exceeded both the statutory maximum and the sentencing guidelines range. The median recommended guidelines sentence was 87 months’ prison. Although the grand theft was a third-degree felony punishable by up to five years in prison, the trial court properly imposed the 87-month sentence, because a trial court must impose a sentence within the sentencing guidelines’ recommended range when the recommended sentence exceeds the statutory maximum for the offense. See Fla. R.Crim. P. 3.703(d)(28); Willis v. State, 736 So .2d 1251 (Fla. 2d DCA 1999). By adding the ten years of probation, however, the trial court exceeded both the statutory maximum and the maximum permitted by the guidelines. A sentence that exceeds both the statutory maximum and the guidelines maximum is illegal. See Willis, 736 So. 2d at 1252.
We therefore affirm the sentences for the two counts of armed burglary, but strike the term of probation on the sentence for grand theft. We affirm the sentence for grand theft in all other respects.
Affirm in part; strike probation sentence for grand theft.
CAMPBELL, A.C.J., and DAVIS, J., Concur.
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Kit Butler v. State, 773 So. 2d 1171 (Fla. 2d DCA 2000)…convictions for possession with intent to sell cannabis and possession with intent to sell methamphetamine are illegal because they exceed the statutory maximum as well as the maximum permitted by [*1172] the guidelines. See, e.g., Padilla v. State, 750 So. 2d 671 (Fla. 2d DCA 1999)(finding probationary split sentence that exceeded both the statutory maximum and the maximum permitted by the guidelines illegal). Affirmed in part, reversed in part, and remanded. PATTERSON, C.J., and FULMER and GREEN, JJ., C…
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Horn v. State, 774 So. 2d 26 (Fla. 2d DCA 2000)…years in prison followed by 25 years of probation for the offense of committing a lewd act on a child, which is a second-degree felony. This sentence exceeds the statutory maximum for a second-degree felony, which is 15 years. See Padilla v. State, 750 So. 2d 671 (Fla. 2d DCA 1999). In addition, the trial court should correct a scrivener’s error in the judgment. The crime of sexual battery on a child under age twelve is listed as a capital felony. However, the trial court granted a partial judgment of acqu…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Geddes Willis v. State, 736 So. 2d 1251 (Fla. 2d DCA 1999)