TERESA L. DEMAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Teresa Demar appeals her convictions for child abuse and aggravated child neglect. The court affirmed the convictions but vacated the sentence for child abuse because it exceeded the statutory maximum permitted under the Criminal Punishment Code, and struck several illegal probation conditions.
A sentence exceeding the statutory maximum is illegal under the Criminal Punishment Code. When the lowest permissible guideline sentence exceeds the statutory maximum, the lowest permissible guideline sentence becomes the maximum the trial judge can impose. Additionally, several probation conditions were struck as erroneous.
[1] A sentence may exceed the statutory maximum for a felony offense when the sentence falls within the sentencing guidelines range.
[2] When the lowest permissible sentence under the sentencing guidelines exceeds the statutory maximum, the lowest permissible guideline sentence becomes the maximum sentence…
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Join FLexlaw to unlock all legal intelligence“a sentence may exceed the statutory maximum when that sentence falls within the sentencing guidelines range”
Establishes the general rule under the Criminal Punishment Code allowing sentences above statutory maximum within guidelines
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Join FLexlaw to unlock all legal intelligenceDemar was charged with aggravated child abuse in Count II. The jury found her guilty of the lesser included offense of child abuse, a third-degree fel…
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PER CURIAM.
Teresa L. Demar challenges her convictions and sentences for child abuse and aggravated child neglect. We affirm the convictions without comment, but vacate the sentence for Count II, child abuse, and remand for resentencing.
Charged with aggravated child abuse in Count II of the Information, the jury found appellant guilty of the lesser offense, child abuse, a third degree felony. § 827.03(1), Fla. Stat. (1999). The maximum sentence for a third degree felony is five years. § 775.082, Fla. Stat. (1999). The guideline scoresheet prepared for appellant established a permissible range of 64.5 months (5.37 years) to 20 years. The trial court sentenced appellant to llk years imprisonment followed by 5 years of probation. Appellant argues that because her sentence exceeds the statutory maximum, it is illegal.
Under the Criminal Punishment Code, which governs this case, a sentence may exceed the statutory maximum when that sentence falls within the sentencing guidelines range. See Maddox v. State, 760 So. 2d 89, 101 n. 9 (Fla.2000). However, as recently clarified by the supreme court, when the statutory maximum is exceeded “by the lowest permissible sentence under the [guidelines prepared pursuant to the] code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.” Butler v. State, 838 So. 2d 554 (Fla.2003) (emphasis added). Thus, the maximum sentence the trial court could have imposed in the instant case is 64.5 months. Accordingly, we vacate the sentence as to Count II and remand for resentencing.
Finally, we strike several conditions of probation which, as the state correctly concedes, are erroneous. First, we strike from the requirements of probation the provision that appellant obtain a job within 30 days of release from prison. See Kirkland v. State, 666 So. 2d 974, 976 (Fla. 1st DCA 1996). Second, we strike the requirement that appellant pay $1,952.72, the cost of investigation; appellant was not given an opportunity to be heard on the issue nor was her ability to pay considered, contrary to section 938.27(5), Florida Statutes. See Cathcart v. State, 643 So. 2d 702 (Fla. 4th DCA 1994). Third, we strike that portion of the probation order directing appellant’s probation officer to determine appellant’s “ability to pay monetary obligations.” See McClough v. State, 669 So. 2d 1099, 1100 (Fla. 5th DCA 1996).
Accordingly, appellant’s convictions are affirmed; her sentence as to count II (child abuse) is vacated, and several conditions of probation, as noted above, are struck; the cause is remanded for resentencing.
AFFIRMED in part, REVERSED in part and REMANDED.
ERVIN, WOLF and VAN NORTWICK, JJ., concur.
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Dennard v. State, 157 So. 3d 1055 (Fla. 4th DCA 2014)…n the statutory maximum sentence is exceeded by the lowest permissible sentence under the Criminal Punishment Code, the lowest permissible sentence under the Code becomes the maximum sentence that the trial judge can impose. See also Demar v. State, 840 So. 2d 381 (Fla. 1st DCA 2003). Thus, the maximum sentence in this case for these crimes is 539.4 months. As the split sentence of 50 years for Counts 2, 6 and 7 exceeds the maximum permissible sentence, we remand this case to the trial court to resentenee Mr.…
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Hannah v. State, 869 So. 2d 692 (Fla. 5th DCA 2004)…n the statutory maximum sentence is exceeded by the lowest permissible sentence under the Criminal Punishment Code, the lowest permissible sentence under the Code becomes the maximum sentence that the trial judge can impose. See also Demar v. State, 840 So. 2d 381 (Fla. 1st DCA 2003). Thus, the maximum sentence in this case for these crimes is 539.4 months. As the split sentence of 50 years for Counts 2, 6 and 7 exceeds the maximum permissible sentence, we remand this case to the trial court to resentence Mr.…
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Derry L. West v. State, 935 So. 2d 123 (Fla. 4th DCA 2006)…owest permissible sentence under the guidelines prepared pursuant to the code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.” Butler v. State, 838 So. 2d 554 (Fla.2003); Demar v. State, 840 So. 2d 381 (Fla. 1st DCA 2003). However, appellant argues that his scoresheet was incorrectly calculated — an allegation the state does not refute — and that his plea was therefore involuntary. As this Court reiterated in Williams v. State, 825 So. 2d 994 (Fl…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Winyatta Butler v. State, 838 So. 2d 554 (Fla. 2003)
- Cathcart v. State, 643 So. 2d 702 (Fla. 4th DCA 1994)
- Kirkland v. State, 666 So. 2d 974 (Fla. 1st DCA 1996)
- McCLOUGH v. State, 669 So. 2d 1099 (Fla. 5th DCA 1996)