THOMAS B. WHEELER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas B. Wheeler appealed his conviction and sentence for burglary charges. The court affirmed the denial of his motion to withdraw his guilty plea but found his burglary sentences were illegal because they exceeded the statutory maximum of 15 years, vacating those sentences and remanding for resentencing with the state given the option to retry the case or allow resentencing.
The court held that Wheeler's burglary sentences of 25 years were illegal because they exceeded the statutory maximum of 15 years. Illegal sentences cannot be imposed even as part of a negotiated plea agreement, and the fact that consecutive sentences could have been imposed does not cure the illegality of the sentences actually imposed.
[1] A trial court does not abuse its discretion in denying a motion to withdraw a guilty plea when the defendant fails to demonstrate a manifest injustice.
[2] A sentence exceeding the statutory maximum for a felony is illegal, even if imposed as part of a negotiated plea agreement.
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Join FLexlaw to unlock all legal intelligence“A sentence which exceeds the statutory maximum is an illegal sentence, compare Davis v. State, 661 So.2d 1193, 1196 (Fla.1995), and an illegal sentence cannot be imposed even as part of a negotiated plea agreement, Wright v. State, 743 So.2d 103 (Fla. 1st DCA 1999).”
Establishes the core principle that illegal sentences cannot be imposed regardless of plea agreement status
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Join FLexlaw to unlock all legal intelligenceWheeler pleaded guilty to five counts of burglary of a dwelling and other crimes pursuant to a plea agreement in which the state recommended a 25-35 y…
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THOMPSON, J.
Thomas B. Wheeler appeals his sentence and the denial of his motion to withdraw plea.
We find no abuse of discretion in the denial of the motion to withdraw plea and affirm the order.
We agree with Wheeler, however, that his sentences for burglary are illegal. Wheeler pleaded guilty to five counts of burglary of a dwelling, among other crimes, in exchange for the state’s recommendation that Wheeler be sentenced to between 25 and 35 years in prison. The court sentenced him to 25 years for each of the burglaries. Burglary of a dwelling is a second-degree felony under section 810.02(3), Florida Statutes (1999), and is punishable by a maximum term of 15 years under section 775.083(3)(e), Florida Statutes (1999). A sentence can exceed the statutory maximum, but only if the lowest permissible sentence under the sentencing code exceeds the statutory maximum.
Rule 3.704(d)(25), Fla. R.Crim. P.; § 921.0024, Fla. Stat. (1999). The lowest permissible sentence for each of the burglaries was 165.6 months, or 13.80 years. Because the lowest permissible sentence was 13.80 years, the maximum permissible sentence was 15 years.
A sentence which exceeds the statutory maximum is an illegal sentence, compare Davis v. State, 661 So. 2d 1193, 1196 (Fla.1995), and an illegal sentence cannot be imposed even as part of a negotiated plea agreement, Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999).
The state argues that the sentences were not illegal because the court could have achieved an overall sentence of 25 years by ordering five-year sentences, which Wheeler also received, to run consecutive to the burglary sentences. We do not agree because the fact that the court could have imposed consecutive sen tences does not cure the illegality of the sentences actually imposed. Similarly, the fact that the court may order consecutive sentences on remand does not cure the illegality of the sentences. Compare Leonard v. State, 760 So. 2d 114, n. 4 (Fla.2000) (holding that illegal sentence should not remain uncorrected merely because it was to be served concurrent to another sentence).
Accordingly, we vacate the sentences for burglary of a dwelling imposed in case numbers CR99-17100, CR99-17101, CR00-569, CR00-368, and CR00-730.
However, because the sentences were the result of a plea agreement with the state, the state should be given the option on remand “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 making the judgment stand and allowing the defendant to be resentenced.” Jolly v. State, 392 So. 2d 54, 56 (Fla. 5th DCA 1981).
AFFIRMED in part; VACATED in part; and REMANDED with instructions.
PETERSON and TORPY, JJ., concur.
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Cited By (11 total)
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Haynes v. State, 106 So. 3d 481 (Fla. 5th DCA 2013)…sentence he bargained for was illegal. His “right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So. 2d 203, 205 (Fla. 4th DCA 2002); accord Wheeler v. State, 864 So. 2d 492, 492 (Fla. 5th DCA 2004) (“[A]n illegal sentence cannot be imposed even as part of a negotiated plea agreement....”) But while Haynes sought relief under rule 3.800(a) to obtain correction of his sentence, he was actually challenging the terms of hi…
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Dominguez v. State, 98 So. 3d 198 (Fla. 2d DCA 2012)…a negotiated plea agreement, “a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So. 2d 203, 205 (Fla. 4th DCA 2002); accord Wheeler v. State, 864 So. 2d 492, 492 (Fla. 5th DCA 2004) (“an illegal sentence cannot be imposed even as part of a negotiated plea agreement”). But when a defendant challenges a sentence imposed pursuant to a plea agreement in a rule 3.800(a) motion, he is actually challenging th…
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Cassista v. State, 57 So. 3d 265 (Fla. 5th DCA 2011)…-pled allegations must be treated as true, unless rebutted conclusively by the record. Tompkins v. State, 872 So. 2d 230, 238 (Fla.2003). Further, “an illegal sentence cannot be imposed even as part of a negotiated plea agreement.” Wheeler v. State, 864 So. 2d 492, 492 (Fla. 5th DCA 2004). To qualify as a PRR, the defendant must have committed or attempted to commit certain enumerated felonies “within 3 years after being released from a state correctional facility operated by the Department of Corrections ..…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leonard v. State, 760 So. 2d 114 (Fla. 2000)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- Wautara Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999)