KEITH DUANE KISSEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Keith Kissel challenged his sentence for two counts of sexual battery on a child following a plea agreement, claiming it was illegal. The court held that while three of his claims were untimely, his fourth claim regarding an improper general sentence had merit and constituted an illegal sentence under recent Florida Supreme Court precedent, requiring resentencing.
The court held that while Kissel's first three claims were untimely under the two-year limitation period established in Zeigler v. State, his fourth claim regarding the improper general sentence had merit. The court determined that the general sentence covering both counts was now illegal under State v. Mancino because it patently failed to comport with statutory limitations, as consecutive sentences could have achieved the same result while complying with sentencing statutes.
[1] A motion to vacate, set aside, or correct a sentence is untimely if filed more than two years after the conviction becomes final.
[2] A general sentence covering multiple counts is considered illegal if it fails to comport with statutory or constitutional limitations.
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Join FLexlaw to unlock all legal intelligence“[a] sentence that, patently fails to comport with statutory or constitutional limitations is by definition 'illegal.'”
Establishes the legal standard for what constitutes an illegal sentence under State v. Mancino
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Join FLexlaw to unlock all legal intelligenceKissel entered nolo contendere pleas to two counts of sexual battery on a child under 16, involving separate incidents. Pursuant to a plea agreement, …
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COBB, J.
The defendant, Keith Kissel, as part of a plea agreement, entered nolo contendere pleas to two counts of sexual battery upon a child under 16. The counts involved separate incidents. Pursuant to the plea agreement, he received a total sentence of 20 years in the Department of Corrections, followed by 15 years probation. He did not appeal, but he did file a Rule 3.800(a) motion claiming that he received an illegal sentence. This motion was granted and his probationary term was reduced to 10 years.
Now, in his Rule 3.850 motion, Kissel raises four claims. His first three claims are untimely under Zeigler v. State, 632 So. 2d 48, 50 (Fla.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994) (two-year time period for challenging a conviction commenced when the conviction alone became final, not when both the conviction and sentence became final).
His fourth claim has merit and can be considered under Rule 3.800(a).
Kissel received an “improper” general sentence covering both counts — 20 years DOC, followed by 10 years probation. Since he was charged with two separate incidents, if the trial court had sentenced him to two consecutive sentences, he could have received basically the same sentence. That is, he could have received 15 years DOC on Count I, and received 5 years DOC, followed by 10 years of probation, on Count II. See § 775.021, Fla. Stat. Previously, a general sentence was considered “improper” but not “illegal.” See Dorfman v. State, 351 So. 2d 954 (Fla.1977); Gonzalez v. State, 367 So. 2d 1008 (Fla.1979).
However, the Florida Supreme Court recently stated in State v. Mancino, 714 So. 2d 429, 433 (Fla.1998), that “[a] sentence that, patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’ “ It seems his “improper general sentence” is now “illegal” under Mancino.
We therefore affirm the trial court’s order on defendant’s first three points, but we reverse and remand with directions to re-sentence defendant. The defendant does not need to be present. See Awad v. State, 364 So. 2d 516 (Fla. 4th DCA 1978) (at re-sentencing necessitated by trial court’s error in imposing a general sentence following conviction of two offénses, it is not necessary for defendant to be present).
AFFIRMED in part; REVERSED and REMANDED in part for re-sentencing.
ANTOON, C.J., and PETERSON, J., concur.
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State v. Jimenez, 173 So. 3d 1020 (Fla. 3d DCA 2015)…olmes v. State, 100 So. 3d 281, 283 (Fla. 3d DCA 2012) (finding that a general sentence to cover multiple counts is an illegal sentence; Rule 3.701(d)(12), Fla. R.Crim. P., provides “[a] sentence must be imposed for each offense.”); Kissel v. State, 757 So. 2d 631, 632 (Fla. 5th DCA 2000) (recognizing that a general sentence is an illegal sentence). We now turn to the issue before us. With regards to Counts 3 and 4, Jimenez was originally sentenced to a general sentence of sixty years. Upon resentencing, Jim…
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Smith v. State, 886 So. 2d 336 (Fla. 5th DCA 2004)…fect the finality of his judgment. See Zeigler v. State, 632 So. 2d 48, 50 (Fla.1993) (although defendant’s death penalty was vacated in 1988, the two-year period for attacking judgment by a 3.850 motion expired on January 1, 1987); Kissel v. State, 757 So. 2d 631 (Fla. 5th DCA 2000) (although defendant was resentenced pursuant to a 3.800(a) motion, the two-year limitation period for issues raised in a 3.850 motion attacking the judgment commenced when the judgment became final, not when defendant was resente…
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Lindsay v. State, 842 So. 2d 1057 (Fla. 4th DCA 2003)…two-year time limit for challenging a conviction commences when the conviction alone became [*1059] final and not when the conviction and sentence both became final), cert. denied, 513 U.S. 880, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994); Kissel v. State, 757 So. 2d 631, 632 (Fla. 5th DCA 2000) (where defendant filed motion for postconviction relief after rule 3.800(a) motion was granted, denying first three claims as untimely, citing Zeig-ler for proposition that “two-year time period for challenging a conviction…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Zeigler v. State, 632 So. 2d 48 (Fla. 1993)
- Brown v. State, 367 So. 2d 1008 (Fla. 1979)
- Jabaay v. Shalala, 513 U.S. 830 (U.S. 1994)
- Arnold v. Texas, 513 U.S. 830 (U.S. 1994)
- Sieffe Joe Awad v. State, 364 So. 2d 516 (Fla. 4th DCA 1978)