CHRISTOPHER S. KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Kelly appeals the denial of his motion to correct an illegal sentence imposed pursuant to a plea agreement. The court reverses and remands, holding that Kelly's sentences of three years imprisonment plus three years probation on each count exceeded the five-year statutory maximum for third-degree felonies, making the sentences illegal despite being less than the theoretical consecutive maximum.
The sentences are illegal because the combined terms of prison and probation exceed the statutory maximum of five years for third-degree felonies. A sentence is illegal when the combined imprisonment and probation terms exceed the statutory maximum, regardless of whether consecutive sentences could theoretically be longer.
[1] A sentence is illegal if the combined terms of prison and probation exceed the statutory maximum, provided the sentencing scoresheet does not authorize a sentence in exce…
[2] Sentences imposed for burglary of an unoccupied structure and third-degree grand theft are each punishable by a term of imprisonment not exceeding five years.
Previewing 2 of 4 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“a sentence is illegal if the combined terms of prison and probation exceed the statutory maximum (provided the sentencing scoresheet does not authorize a sentence in excess of the statutory maximum)”
Establishes the legal standard for determining whether a sentence is illegal under Florida law
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Join FLexlaw to unlock all legal intelligenceKelly pleaded no contest to two counts of burglary of an unoccupied structure and two counts of third-degree grand theft. He received concurrent sente…
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[*1222] WHATLEY, Judge.
Christopher S. Kelly appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order because the sentences imposed exceed the statutory maximum.
Kelly pleaded no contest to two counts of burglary of an unoccupied structure and two counts of third-degree grand theft in exchange for concurrent sentences of three years’ imprisonment followed by three years’ probation for each count. Kelly’s burglary of a structure charges are each punishable by a term of imprisonment not exceeding five years. See §§ 810.02(4)(a), 775.082(3)(d), Fla. Stat. (2000). Kelly’s grand theft charges are each punishable by a term of imprisonment not exceeding five years. See §§ 812.014(l)(c), 775.082(3)(d), Fla. Stat. (2000).
In his motion, Kelly claimed that his sentences are illegal because they exceed the statutory maximum permitted for third-degree felonies. The trial court denied the claim finding that Kelly’s sentences were less than the twenty-year term that could have been imposed had the trial court sentenced Kelly to maximum consecutive sentences on each count.
However, a sentence is illegal if the combined terms of prison and probation exceed the statutory maximum (provided the sentencing scoresheet does not authorize a sentence in excess of the statutory maximum). Morales v. State, 712 So. 2d 474, 474 (Fla. 2d DCA 1998). Kelly’s sentencing scoresheet total did not exceed the statutory maximum. Accordingly, Kelly’s sentences are illegal because each sentence exceeds the five-year statutory maximum for a felony of the third degree. See § 775.082(3)(d), Fla. Stat. (2000). We therefore vacate the sentences and remand for resentencing.
Because the sentences imposed were the result of a negotiated plea, Kelly may be resentenced within the statutory maximum of five years only with the State’s agreement. See Howell v. State, 764 So. 2d 780, 781 (Fla. 2d DCA 2000). If the State does not agree to such a sentence, Kelly must be allowed to withdraw his pleas. See id.
Reversed and remanded with instructions.
FULMER and COVINGTON, JJ., Concur.
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Citator
Cited By
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Lang v. State, 931 So. 2d 922 (Fla. 2d DCA 2005)…ng. See Robbins v. State, 641 So. 2d 934 (Fla. 2d DCA 1994). Because the sentence imposed was the result of a negotiated plea, Lang may be resentenced within the statutory maximum of fifteen years only with the State’s agreement. See Kelly v. State, 816 So. 2d 1221 (Fla. 2d DCA 2002). If the State does not agree to such a sentence, Lang must be allowed to withdraw his plea. See id. at 1222. Reversed and remanded with instructions. SILBERMAN and CANADY, JJ„ concur.…
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Parks v. State, 223 So. 3d 380 (Fla. 2d DCA 2017)…§ 775.082(3)(a)(3), Fla. Stat, (1997), . Other Florida 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. Stat…
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Buggs v. State, 268 So. 3d 878 (Fla. 2d DCA 2019)
Authorities Cited
- Howell v. State, 764 So. 2d 780 (Fla. 2d DCA 2000)
- Recanzone v. The MAY Co., 712 So. 2d 474 (Fla. 4th DCA 1998)