SAMUEL HOWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Samuel Howell appeals the denial of his motion to correct an illegal sentence for attempted second-degree murder. The court agrees the 25-year sentence exceeds the statutory maximum of 15 years under Florida's Prison Release Reoffender Punishment Act and vacates the sentence for resentencing.
The court agrees with the State's concession that the 25-year sentence is illegal and exceeds the statutory maximum of 15 years for a second-degree felony under the Act. The sentence is vacated and the case is remanded for resentencing, with the restriction that resentencing to 15 years may only occur with the State's agreement, otherwise Howell may withdraw his plea.
[1] A sentence exceeding the statutory maximum penalty for a felony under the Prison Release Reoffender Punishment Act is illegal.
[2] When an illegal sentence results from a negotiated plea where the charge was reduced, the state must agree to a resentencing within the statutory maximum for the original…
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Join FLexlaw to unlock all legal intelligence“the twenty-five-year sentence is illegal and must be vacated because it exceeds the statutory maximum allowed under the Act for attempted second-degree murder, a felony of the second degree”
Establishes the core holding that the sentence violates Florida's statutory maximum penalty for second-degree felonies
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Join FLexlaw to unlock all legal intelligenceHowell pleaded guilty to attempted second-degree murder pursuant to a negotiated plea agreement. The agreed-upon sentence was 25 years imprisonment wi…
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[*781] PER CURIAM.
Samuel Howell appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Howell pleaded guilty to attempted second-degree murder in exchange for an agreed upon sentence of twenty-five years’ prison with the first fifteen years to be served as a mandatory minimum sentence pursuant to the Prison Release Reoffender Punishment Act.1 The State concedes error. The State concedes that the twenty-five-year sentence is illegal and must be vacated because it exceeds the statutory maximum allowed under the Act for attempted second-degree murder, a felony of the second degree.2 See § 775.082(8)(a)2 c, Fla. Stat. (1997) (providing that the statutory maximum penalty for a second-degree felony pursuant to the Act is fifteen years); § 782.04 (providing that second-degree murder is a felony of the first degree); § 777.04 (providing that the attempt to commit a first-degree felony constitutes a felony of the second degree). We agree, vacate the sentence, and remand for resentencing.
Because the sentence imposed in this case resulted from a negotiated plea in which the State reduced the charge, on remand, the trial court may resentence Howell to a fifteen year prison releasee reoffender sentence only with the State’s agreement. See Forshee v. State, 579 So. 2d 388 (Fla. 2d DCA 1991)(holding that where the State has reduced the charge as part of the negotiated plea and the agreed-upon sentence is determined to be illegal, the State is not bound to accept the plea for which it did not bargain). If the State does not agree to the fifteen year sentence, then Howell must be allowed to withdraw his plea.
We affirm the denial of Howell’s other claim without discussion.
Affirmed in part, reversed in part, and remanded with instructions.
BLUE, A.C.J., and NORTHCUTT and CASANUEVA, JJ., Concur. . § 775.082(8), Fla. Stat. (1997). The Act now appears at section 775.082(9), Florida Statutes (1999).
. We note that in addition to exceeding the statutory maximum, the sentence as imposed is not authorized by the Act.
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Tucker v. State, 864 So. 2d 580 (Fla. 2d DCA 2004)…enging an illegal sentence resulting from a negotiated plea, this court vacated the sentence and directed that on remand, if the State did not agree to the reduced sentence, then the defendant "must be allowed to withdraw his plea.” Howell v. State, 764 So. 2d 780, 781 (Fla. 2d DCA 2000). However, in Nedd v. State, 855 So. 2d 664 (Fla. 2d DCA 2003), this court affirmed the denial of post-conviction relief sought pursuant to rule 3.800. Although the negotiated plea resulted in an illegal sentence, we stated th…
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Parks v. State, 223 So. 3d 380 (Fla. 2d DCA 2017)…da cases in which relief has been granted under rule 3.800(a) from illegal sentences imposed pursuant to plea agreements include Gamez v. State, 944 So. 2d 1253 (Fla. 2d DCA 2006), Kelly v. State, 816 So. 2d 1221 (Fla. 2d DCA 2002), Howell v. State, 764 So. 2d 780 (Fla. 2d DCA 2000), Adams v. State, 901 So. 2d 275 (Fla. 5th DCA 2005), Taylor v. State, 899 So. 2d 1191 (Fla. 1st DCA 2005), Gifford v. State, 744 So. 2d 1046 (Fla. 4th DCA 1999), and Ruiz v. State, 537 So. 2d 682 (Fla. 3d DCA 1989). . We note tha…
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Govea v. State, 785 So. 2d 638 (Fla. 5th DCA 2001)…ause for further proceedings. However, should Govea elect to pursue his resentencing below, the state should also be accorded an opportunity to withdraw from the plea agreement. See Gibson v. State, 772 So. 2d 35 (Fla. 2d DCA 2000); Howell v. State, 764 So. 2d 780 (Fla. 2d DCA 2000); Gault v. State, 762 So. 2d 578 (Fla. 5th DCA 2000). If the state is willing to adhere to the plea agreement, the court must impose a sentence which does not exceed the statutory maximum term for the crime. Sentence VACATED on Co…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chambliss v. State, 579 So. 2d 388 (Fla. 2d DCA 1991)