JAY THOMAS ECKARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jay Eckard appeals his conviction for vehicular homicide and his sentence of 84 months incarceration followed by 10 years probation. The court vacates and remands the sentence as illegal because the total sanction of 204 months exceeds both the statutory maximum of 5 years and the sentencing guidelines maximum, while upholding the conviction and denying his mistrial motion.
The sentence is illegal and must be vacated and remanded for resentencing because the total sanction of 204 months exceeds both the 5-year statutory maximum and the 185-month upper end of the sentencing guidelines range. The trial court did not abuse its discretion in denying the motion for mistrial.
[1] A sentence exceeding both the statutory maximum and the upper end of the sentencing guidelines range is illegal.
[2] A trial court does not abuse its discretion by denying a motion for mistrial based on witness testimony if the testimony does not prejudice the defendant.
Previewing 2 of 3 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“Appellant's sentencing guidelines scoresheet yielded a sentence of 148 months incarceration or a minimum sentence of 111 months and a maximum sentence of 185 months.”
Establishes the sentencing guidelines range for vehicular homicide
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Join FLexlaw to unlock all legal intelligenceEckard was charged with manslaughter by driving under the influence but convicted of the lesser included offense of vehicular homicide, a third degree…
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PLEUS, J.
Appellant, Jay Eckard, appeals a judgment and sentence.
Appellant was charged by information with manslaughter by driving under the influence and convicted of the lesser included offense of vehicular homicide. The trial court adjudicated him guilty of the offense and sentenced him to 84 months in prison followed by 10 years probation with an early release after 5 years if all conditions were satisfied.
On appeal, appellant challenges his sentence on the ground that it exceeds the statutory and guidelines maximum. Appellant was convicted of the lesser included offense of vehicular homicide, a third degree felony punishable by a term of incarceration not exceeding 5 years. See §§ 782.071(1) & 775.082(3)(d), Fla. Stat. (1997). Appellant’s sentencing guidelines scoresheet yielded a sentence of 148 months incarceration or a minimum sentence of 111 months and a maximum sentence of 185 months. Because the offense was committed in an unsophisticated manner and was an isolated incident for which appellant had shown remorse, the trial court departed downward and sentenced him to 84 months incarceration followed by 10 years probation with an early release after 5 years if all conditions were satisfied. See § 921.0026(2)0), Fla. Stat. (1997). Appellee concedes that the trial court’s total sanction of 204 months exceeds both the 5-year statutory maximum and the 185-month upper end of the sentencing guidelines range and is therefore illegal. See Willis v. State, 736 So. 2d 1251 (Fla. 2d DCA 1999); Nunez v. State, 721 So. 2d 346 (Fla. 2d DCA 1998); Moyer v. State, 715 So. 2d 1112 (Fla. 5th DCA 1998); Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997), receded from on other grounds, Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA), rev. granted, 718 So. 2d 169 (Fla.1998), rev. granted, 728 So. 2d 203 (Fla.1999). Accordingly, the sentence is vacat ed and the cause remanded for resentencing.
Appellant also contends that the trial court erred by denying his motion for mistrial based upon the testimony of a witness that the day after the offenses were committed, he picked up a pill bottle in her yard containing marijuana. The trial court did not abuse its discretion in denying appellant’s motion for mistrial. See Goodwin v. State, 751 So. 2d 537 (Fla.1999).
JUDGMENT AFFIRMED; SENTENCE VACATED AND REMANDED.
HARRIS and PETERSON, JJ„ concur.
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Cartwright v. State, 885 So. 2d 1010 (Fla. 4th DCA 2004)…inadvertent and was not focused upon). Further, the trial court, with the defendant’s consent, promptly provided the jury with a curative instruction sufficient to cure any prejudice caused as a result of the victim’s response. See Eckard v. State, 758 So. 2d 742, 743 (Fla. 5th DCA 2000) (finding no error in trial court’s denial of motion for mistrial in DUI manslaughter prosecution when witness testified that defendant was in possession of a pill bottle containing marijuana the day after the offense). The…
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Langford v. State, 773 So. 2d 108 (Fla. 5th DCA 2000)…IAM. In this Anders appeal,1 the state has acknowledged that Langford received a sentence for aggravated battery,2 which exceeded both the statutory maximum and the recommended guidelines range. It is therefore illegal. See, e.g., Eckard v. State, 758 So. 2d 742 (Fla. 5th DCA 2000). Accordingly, we reverse Langford’s sen [*109] tence of twelve years incarceration followed by ten years probation and remand for resentencing. Sentence VACATED; REMANDED. COBB, W. SHARP, and PETERSON, JJ., concur. . Ander…
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Eckard v. State, 816 So. 2d 771 (Fla. 5th DCA 2002)…d by statute. Accordingly, we reverse Eckard’s sentence and remand with instructions that the trial court impose a sentence within the statutory maximum. Sentence REVERSED and case REMANDED. GRIFFIN and PLEUS, JJ., concur. . See Eckard v. State, 758 So. 2d 742 (Fla. 5th DCA 2000). . Section 921.001 of the Florida Statutes (1997) provides, in relevant part: 921.001. Sentencing Commission and sentencing guidelines generally (5) ... If a recommended sentence under the guidelines exceeds the maximum senten…
Authorities Cited
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Nunez v. State, 721 So. 2d 346 (Fla. 2d DCA 1998)
- Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997)
- Geddes Willis v. State, 736 So. 2d 1251 (Fla. 2d DCA 1999)
- Moyer v. State, 715 So. 2d 1112 (Fla. 5th DCA 1998)