DONALD E. HANNAH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald E. Hannah appeals his convictions and sentences for sexual crimes against a child in a familial relationship. The court affirmed the convictions and most sentences, but vacated and remanded the sentences for three counts because they exceeded the statutory maximum under the Criminal Punishment Code.
The sentences for Counts 2, 6, and 7 are illegal because they exceeded the maximum permissible sentence under the Criminal Punishment Code. When the lowest permissible sentence under the Code exceeds the statutory maximum, the lowest permissible sentence becomes the maximum the judge can impose. Hannah's due process challenge to his sexual predator designation was rejected.
[1] When the Criminal Punishment Code's lowest permissible sentence exceeds the statutory maximum sentence for a crime, the lowest permissible sentence under the Code becomes…
[2] A sentence exceeding the maximum permissible sentence under the Criminal Punishment Code is illegal.
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“when 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”
Establishes the controlling legal principle for sentencing when the Code's minimum exceeds the statute's maximum
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Join FLexlaw to unlock all legal intelligenceHannah was convicted of multiple counts of sexual activity with a child in a familial relationship under Florida Statutes section 794.011(8)(b). His C…
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MONACO, J.
The appellant, Donald E. Hannah, challenges his convictions and sentences for a number of counts for sexual crimes, including Counts 2, 6 and 7, charging sexual activity with a child in a familial relationship, in violation of section 794.011(8)(b), Florida Statutes (2000). We affirm the judgments on each count without comment, and affirm all of the sentences, except for the sentences for Counts 2, 6 arid 7. As to Counts 2, 6 and 7, however, we vacate the sentences and remand for re-sentencing.
Violations of section 794.011(8)(b) are first degree felonies, ordinarily punishable by up to thirty years in prison. Mr. Hannah’s Criminal Punishment Code score-sheet, however, showed 747.2 total sentence points, and a lowest permissible sentence of 539.4 months (about 44.95 years), in state prison. The trial court chose on these counts to sentence Mr. Hannah concurrently to a split sentence of 25 years in prison, followed by 25 years of sex offender probation. Mr. Hannah asserts that the sentence for these three counts is illegal. We agree.
In Butler v. State, 838 So. 2d 554 (Fla.2003), the Florida Supreme Court held that when 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. Hannah on those counts.
Mr. Hannah also attacks his sexual predator designation on due process grounds. We have addressed this issue in two earlier cases and have rejected the argument. See Martin v. State, 864 So. 2d 589 (Fla. 5th DCA 2004); Miller v. State, 861 So. 2d 1283 (Fla. 5th DCA 2004). As we did in Martin and Miller, we certify conflict with Espindola v. State, 855 So. 2d 1281 (Fla. 3d DCA 2003).
AFFIRMED in part, REVERSED in part, and REMANDED.
PETERSON and THOMPSON, JJ, concur.
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Dennard v. State, 157 So. 3d 1055 (Fla. 4th DCA 2014)…ast the LPS for that offense, but I don’t read Butler as allowing each additional offense to be sentenced to up to the LPS where the LPS exceeds the statutory maximum for the additional offense. The Fifth District followed Demar in Hannah v. State, 869 So. 2d 692 (Fla. 5th DCA 2004), rev. dismissed, 921 So. 2d 628 (Fla.2006). There, the defendant’s conviction included three counts of sexual activity with a child in a familial relationship, each a first degree felony, with a thirty-year statutory maximum. 869…
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Curry v. State, 261 So. 3d 524 (Fla. 2d DCA 2019)
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Rodriguez v. State, 268 So. 3d 954 (Fla. 5th DCA 2019)…PER CURIAM. AFFIRMED. See Hannah v. State, 869 So. 2d 692, 693 (Fla. 5th DCA 2004) (citing Butler v. State, 838 So. 2d 554 (Fla. 2003)). EVANDER, C.J., EISNAUGLE, and HARRIS, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ferman Carlos Espindola v. State, 855 So. 2d 1281 (Fla. 3d DCA 2003)
- Winyatta Butler v. State, 838 So. 2d 554 (Fla. 2003)
- Miller v. State, 861 So. 2d 1283 (Fla. 5th DCA 2004)
- Martin v. State, 864 So. 2d 589 (Fla. 5th DCA 2004)
- Demar v. State, 840 So. 2d 381 (Fla. 1st DCA 2003)