GREGG EUGENE GIBSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregg Gibson appeals his prison releasee reoffender sentence for attempted burglary, which exceeded the statutory maximum. The court reverses and remands, holding the sentence violates the statutory cap and directing the trial court to give the State options regarding the plea agreement and resentencing.
The sentence exceeds the statutory five-year maximum and must be corrected. Upon remand, the trial court must give the State the option of either requiring withdrawal of the plea and retrying the defendant on the original burglary charge, or allowing the judgment to stand while seeking resentencing within the statutory limit.
[1] A sentence exceeding the statutory maximum for a felony is illegal and must be reversed.
[2] When an illegal sentence is reduced on remand, the State may be given the option to either withdraw the plea and proceed to trial or allow the judgment to stand for resen…
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Join FLexlaw to unlock all legal intelligence“Mr. Gibson's sentence of ten years' imprisonment with the first five years to be served as a prison releasee reoffender exceeds the five-year statutory maximum under section 775.082(3)(d), Florida Statutes (1999), for the third-degree felony of attempted burglary of a dwelling.”
Establishes the core legal violation—the sentencing error that violated the statutory maximum.
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Join FLexlaw to unlock all legal intelligenceMr. Gibson was sentenced to ten years' imprisonment with the first five years to be served as a prison releasee reoffender for the third-degree felony…
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[*36] ALTENBERND, Judge.
Gregg Gibson appeals his prison releas-ee reoffender sentence for attempted burglary of a dwelling. We reverse.
Mr. Gibson argues, and the State concedes, that Mr. Gibson’s sentence of ten years’ imprisonment with the first five years to be served as a prison releasee reoffender exceeds the five-year statutory maximum under section 775.082(3)(d), Florida Statutes (1999), for the third-degree felony of attempted burglary of a dwelling.
On remand in cases such as this where correcting the sentence involves a reduction of a negotiated sentence, the original plea bargain is not binding on the State. See Jolly v. State, 392 So. 2d 54, 56 (Fla. 5th DCA 1981). In Jolly, the Florida Supreme Court explained:
[I]n a situation involving a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to be resentenced....
Id. at 56 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)); Adkinson v. State, 743 So. 2d 1180, 1181 (Fla. 1st DCA 1999) (vacating similar sentence and giving State options of voiding plea agreement or simply seeking re-sentencing); Williams v. State, 650 So. 2d 1054, 1055 (Fla. 1st DCA 1995) (reversing sentences, giving State option of vacating only illegal portions of sentences but allowing judgments to stand, or vacating both sentences and judgments and proceeding to trial).
Therefore, we direct the trial court on remand to give the State the option of requiring the withdrawal of Mr. Gibson’s plea and trying him on the original charge of burglary of a dwelling or allowing the judgment to stand and simply seeking re-sentencing. See Morales v. State, 712 So. 2d 474, 475 (Fla. 2d DCA 1998); Forshee v. State, 579 So. 2d 388, 389 (Fla. 2d DCA 1991).
We reject Mr. Gibson’s argument that the trial court cannot sentence him as a prison releasee reoffender for attempted burglary of an unoccupied dwelling. He cites State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999) (en banc), review granted, 761 So. 2d 332 (Fla.2000), to support his argument. However, Huggins conflicts with this court’s precedent. See Medina v. State, 751 So. 2d 138 (Fla. 2d DCA) (holding Prison Releasee Reoffender Punishment Act applied where dwelling was unoccupied; certifying conflict with Huggins), review granted, 760 So. 2d 947 (Fla.2000); Ramos v. State, 775 So. 2d 329 (Fla. 2d DCA 2000) (certifying conflict with Huggins); Hunter v. State, 751 So. 2d 181 (Fla. 2d DCA 2000) (certifying conflict with Huggins); State v. Chamberlain, 744 So. 2d 1185 (Fla. 2d DCA 1999); State v. White, 736 So. 2d 1231 (Fla. 2d DCA 1999).
We note that the First District has also declined to follow Huggins. See Foresta v. State, 751 So. 2d 738, 739 (Fla. 1st DCA 2000), review granted, Table, No. SC00-428, 767 So. 2d 456 (Fla.2000); State v. Young, 766 So. 2d 425, 427 (Fla. 1st DCA Aug.25, 2000); Hicks v. State, 755 So. 2d 815, 815 (Fla. 1st DCA 2000); Heath v. State, 753 So. 2d 795 (Fla. 1st DCA 2000) (certifying conflict with Huggins).
The trial court on remand should also correct the scrivener’s error in Mr. Gibson’s original judgment, which cites incorrect statute numbers for burglary and attempt.
Reversed and remanded.
PATTERSON, C.J., and CASANUEVA, J., Concur.
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Sidell v. State, 787 So. 2d 139 (Fla. 2d DCA 2001)…er, because the State gave up something as part of the plea agreement. “If the plea agreement is not binding upon the defendant, then it is not binding upon the state.” Jolly v. State, 392 So. 2d 54, 56 (Fla. 5th DCA 1981). See also Gibson v. State, 772 So. 2d 35 (Fla. 2d DCA 2000) (reversing improper prison releasee reoffender sentence on direct appeal but remanding for State to have option of requiring plea withdrawal or seeking resentencing only). [D]ue to the fact that a post-conviction motion may be ra…
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Buckingham v. State, 771 So. 2d 1206 (Fla. 2d DCA 2000)…nt’s sentence was the result of a negotiated plea, the State shall have the option of agreeing to a bottom of the guidelines sentence under the 1994 guidelines, or withdrawing from the plea bargain and taking appellant to trial. See Gibson v. State, 772 So. 2d 35 (Fla. 2d DCA 2000); Spacco v. State, 762 So. 2d 597 (Fla. 5th DCA 2000). Sentence vacated; remanded with directions. SALCINES, J., Concurs. PARKER, J., Concurs specially.…
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Vareia v. State, 777 So. 2d 1168 (Fla. 3d DCA 2001)…the State on remand shall have the option of agreeing to a guidelines sentence under the 1994 guidelines, or withdrawing from the plea bargain and taking Vareia to trial. See Buckingham v. State, 771 So. 2d 1206 (Fla. 2d DCA 2000); Gibson v. State, 772 So. 2d 35 (Fla. 2d DCA 2000); Spacco v. State, 762 So. 2d 597 (Fla. 5th DCA 2000). Reversed and remanded.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999)
- State v. White, 736 So. 2d 1231 (Fla. 2d DCA 1999)
- Detrick Williams v. State, 650 So. 2d 1054 (Fla. 1st DCA 1995)
- Chambliss v. State, 579 So. 2d 388 (Fla. 2d DCA 1991)
- Newcomb v. Anne Pennoyer Newcomb, 751 So. 2d 738 (Fla. 1st DCA 2000)
- State v. Chamberlain, 744 So. 2d 1185 (Fla. 2d DCA 1999)
- Recanzone v. The MAY Co., 712 So. 2d 474 (Fla. 4th DCA 1998)
- Medina v. State, 751 So. 2d 138 (Fla. 2d DCA 2000)