DERICK LOWERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derick Lowery appealed his conviction and sentence for sexual activity with a minor and interference with custody. The court affirmed the conviction but vacated the sentence because the combined term of incarceration and probation exceeded the guideline maximum, requiring resentencing.
The conviction is affirmed, but the sentence is vacated and remanded for resentencing. While the 68.7-month incarcerative term alone is proper under the guidelines, the total sanction of incarceration and probation totaling 128.7 months exceeds the maximum term of 114.5 months authorized by the guidelines.
[1] A guideline sentence exceeding the statutory maximum penalty for a felony must be imposed, absent a departure.
[2] When a split sentence is imposed, the total sanction of incarceration and community or probation shall not exceed the term provided by general law or the guidelines recom…
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“the total sanction of incarceration and community or probation shall not exceed the term provided by general law or the guidelines recommended sentence where the provisions of subsection 921.001(5) apply”
Establishes the rule that combined sentences must not exceed the guideline maximum, which was violated here
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLowery was convicted of a second degree felony (sexual activity with a person 16 or 17 years of age) and a third degree felony (interference with cust…
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COBB, J.
In this Anders appeal,1 this court asked for supplemental briefs on a sentencing issue. Appellant, Derick Lowery, was convicted of a second degree felony, sexual activity with a person 16 or 17 years of age,2 and a third degree felony, interference with custody,3 and sentenced to concurrent terms of 68.7 months incarceration followed by 60 months probation. Lowery’s guideline scoresheet reflected a sentencing range of 68.7 to 114.5 months incarceration. The statutory maximum penalty for a third degree felony under section 775.082(3)(d), Florida Statutes (1999) is five years. The 68.7 month incar-cerative term for Lowery’s third degree felony is proper, since a guideline sentence exceeding the general statutory maximum penalty must be imposed, absent a departure. See Mays v. State, 717 So. 2d 515 (Fla.1998); § 921.001(5), Fla. Stat. (1999); Fla. R.Crim. P. 3.703(d)(28). However, the total sanction of incarceration and probation totaling 128.7 months exceeds the maximum term of 114.5 months authorized by the guidelines. Florida Rule of Criminal Procedure 3.703(d)(31) states that when a split sentence is imposed, the total sanction of incarceration and community or probation shall not exceed the term provided by general law or the guidelines recommended sentence where the provisions of subsection 921.001(5) apply. We therefore vacate the sentence on the third degree felony and remand the case back to the trial court for resentencing. Although the state requests this court to certify conflict with Cauble v. State, 742 So. 2d 422 (Fla. 2d DCA 1999), the exact sentencing disposition in that case is unclear and we therefore decline to find an express conflict.
JUDGMENT AFFIRMED; SENTENCE VACATED AND REMANDED.
ANTOON, C.J. and GRIFFIN, J., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. § 794.05(1), Fla. Stat. (1999).
. § 787.03(1), Fla. Stat. (1999).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Daneal J. Irons v. State, 787 So. 2d 975 (Fla. 5th DCA 2001)…e decline to certify conflict on the sentencing issue because 'the position of our sister court in Hudson v. State, 765 So. 2d 273 (Fla. 1st DCA 2000) and Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995) seems unclear to us. See Lowery v. State, 754 So. 2d 888 (Fla. 5th DCA 2000) (declining to find express conflict where exact sentencing disposition in other case was unclear). AFFIRMED. PETERSON and ORFINGER, R.B., JJ., concur.…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Mays v. State, 717 So. 2d 515 (Fla. 1998)
- Rodriguez v. State, 742 So. 2d 422 (Fla. 2d DCA 1999)