JOHN LOUIS DUBALSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed denial of Rule 3.850 motion but remanded to strike the twenty-five-year minimum mandatory sentence imposed on a second-degree murder conviction, as statutory authority for such a minimum applies only to capital felonies where death is not imposed, not to first-degree felonies punishable by life.
A trial court lacks statutory authority to impose a twenty-five-year minimum mandatory sentence on a conviction for second-degree murder (a first-degree felony punishable by life), as such minimums apply only to capital felonies where death is not imposed.
[1] A trial court lacks statutory authority under Florida law to impose a twenty-five-year minimum mandatory sentence upon conviction of a first-degree felony punishable by l…
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Join FLexlaw to unlock all legal intelligenceDubalski was convicted of second-degree murder with a firearm and sentenced to life imprisonment with a notation of no possibility of parole for twent…
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BLUE, Chief Judge.
John Dubalski challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, the denial of the single claim raised in Dubalski’s motion. However, we remand to the trial court with directions to strike the twenty-five-year minimum mandatory.
Dubalski was convicted of second-degree murder with a firearm, a first-degree felony punishable by life. § 782.04(2), Fla. Stat. (1987). The trial court departed from the guidelines and sentenced Dubal-ski to life imprisonment. The written sentence indicates that Dubalski is to serve life imprisonment with no possibility of parole for twenty-five years. Under the statute in effect at the time, where a person is convicted of a capital felony and the death sentence is not imposed, the trial court must impose a sentence of life imprisonment with a twenty-five-year minimum mandatory. § 775.082(1), Fla. Stat. (1987). However, there is no statutory authority to support the imposition of a twenty-five-year minimum mandatory where a person has been convicted of a first-degree felony punishable by life. § 775.082(3)(b), Fla. Stat. (1987). Accordingly, we remand to the trial court to strike that portion of Dubalski’s sentence that states he is to have no possibility of parole for twenty-five years.
Remanded with instructions.
ALTENBERND and NORTHCUTT, JJ., concur.