DAVID WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Wright was convicted by jury of battery on a law enforcement officer and sentenced to ten years with a five-year minimum mandatory term. The appellate court affirmed the conviction but reversed and remanded the sentence because the trial court lacked statutory authority to impose the minimum mandatory term it imposed.
The trial court erred in imposing a minimum mandatory term of imprisonment because it sentenced Wright as a habitual felony offender under section 775.084(4)(a), which does not provide for minimum mandatory terms. The conviction is affirmed, but the sentence is reversed and remanded for resentencing without the minimum mandatory term.
[1] A conviction will be affirmed when a jury finds a defendant guilty of battery on a law enforcement officer.
[2] An improper imposition of a minimum mandatory sentence constitutes fundamental error that can be corrected on direct appeal even if not preserved at the trial level.
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Join FLexlaw to unlock all legal intelligence“The State correctly concedes that section would not authorize a minimum mandatory term in this case.”
Establishes that the statute cited for the minimum mandatory term lacked legal authority
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Join FLexlaw to unlock all legal intelligenceWright was convicted by jury of battery on a law enforcement officer and sentenced to ten years incarceration with a five-year minimum mandatory term.…
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NORTHCUTT, Judge.
A jury convicted David Wright of one count of battery on a law enforcement officer. Wright seeks reversal of his conviction, claiming the circuit court erred in denying his motion for judgment of acquit tal and in giving the jurors an Allen
charge. We affirm the conviction without discussion, but we agree with Wright’s challenge to the minimum mandatory portion of his sentence and reverse.2
The court sentenced Wright to ten years’ incarceration, including a five-year minimum mandatory term. At the hearing, the judge did not recite any statutory authority for the minimum mandatory portion of the sentence, but the written judgment states it was ordered pursuant to section 775.0823, Florida Statutes (1995). The State correctly concedes that section would not authorize a minimum mandatory term in this case. It argues instead that the judgment contains a scrivener’s error and that the court intended to apply section 775.084(4)(b)3, Florida Statutes (Supp.1996), which mandates a five-year minimum mandatory term for a habitual violent felony offender. The State filed a notice of its intent to seek either habitual felony offender or habitual violent felony offender sentencing. See § 775.084(l)(a), (b), (3)(b), Fla. Stat. (Supp. 1996). At the sentencing hearing, however, the circuit court specifically announced that Wright would be sentenced as a habitual felony offender, and the written judgment mirrors this pronouncement. The transcript of the sentencing hearing shows that neither the State nor the court mentioned habitual violent felony offender sentencing. The habitual felony offender sentencing statute, section 775.084(4)(a), does not provide for minimum mandatory terms of incarceration.
We reverse Wright’s sentence and remand for resentencing without a minimum mandatory term. Wright need not be present for this proceeding.
Conviction affirmed, sentence reversed and remanded.
FULMER, A.C.J., and DAVIS, J., Concur. . Allen v. United States, 164 U.S. 492, 17 S.Cl. 154, 41 L.Ed. 528 (1896).
. Wright did not object to the imposition of a minimum mandatory term at his sentencing hearing, but argues on appeal that it constituted fundamental error. We agree. See Maddox v. State, 760 So. 2d 89, 103 (Fla.2000) (noting that improper imposition of a minimum mandatory term can result in incarcera-lion for a period longer than that provided for by law and that such errors can be corrected on direct appeal even if not preserved). Wright is within the window period established in Maddox; his appeal fell between the effective date of the Criminal Appeal Reform Act and effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b). See id. at 94.
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Robbins v. State, 813 So. 2d 960 (Fla. 2d DCA 2002)…sentencing. COVINGTON, J., and THREADGILL, EDWARD F., Senior Judge, Concur. . Although the error was not preserved it could, at the time of the appeal, be raised as fundamental error. See Maddox v. State, 760 So. 2d 89 (Fla.2000); Wright v. State, 779 So. 2d 399 (Fla.2d DCA 2000).…
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Aburto v. State, 848 So. 2d 1197 (Fla. 4th DCA 2003)…ly to the State’s Response.” In this Reply, Aburto raised a different ground for relief, claiming the three-year minimum mandatory sentence imposed by the court was illegal. The Reply appears to state a legally sufficient claim. See Wright v. State, 779 So. 2d 399 (Fla. 2d DCA 2000); Grant v. State, 650 So. 2d 705 (Fla. 3d DCA 1995); Alfrod v. State, 644 So. 2d 549 (Fla. 3d DCA 1994). The trial court has not addressed this claim. To prevent Aburto’s claim from inadvertently being barred as successive, we wr…
Authorities Cited
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)