TODD SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Todd Smith appeals his conviction and sentences for robbery, burglary, and kidnapping committed in 1982. The Florida District Court of Appeal reversed his sentences for robbery and burglary because the sentencing guidelines under which he was sentenced were later declared unconstitutional, while affirming his kidnapping sentences.
The court reversed the denial of Smith's motion to correct illegal sentence on the robbery and burglary counts because the sentencing guidelines were unconstitutional, and remanded for re-sentencing either to non-guideline, parole-eligible sentences or, at Smith's election, to sentences under the sentencing statutes in effect at the time of his election. The court affirmed the kidnapping sentences as correctly imposed under non-guideline sentences.
[1] Sentences imposed under a statute later declared unconstitutional are subject to correction.
[2] A defendant has the right to be present at re-sentencing and to be represented by counsel.
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“the guidelines under which he was sentenced for robbery and burglary, section 921.001, Florida Statutes (1983), were later declared unconstitutional until enacted by the legislature on July 1, 1984”
Establishes the legal basis for why Smith's robbery and burglary sentences were illegal and required reversal.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted on two counts of robbery with a pistol, one count of burglary without a firearm, and two counts of kidnapping with a pistol for cr…
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PER CURIAM.
Appellant, Todd Smith, .appeals from the trial court’s denial of his Motion to Correct Illegal Sentence. See Fla. R.Crim. P. 3.800(a). Based on the State’s proper confession of error, we reverse Appellant’s sentences on two' counts of robbery and one count of burglary and remand for re-sentencing.
Appellant was convicted on two counts of robbery with a pistol, one count of burglary without a firearm, and-two counts of kidnapping with a pistol for crimes committed on December 24, 1982. He was sentenced on October 31,1983 to ten years imprisonment for each of the robbery and burglary convictions, to be served concurrently, and life in prison for the two kidnapping convictions, to be served consecutive to the first robbery count.
Appellant argues that the guidelines under which he was sentenced for robbery and burglary, section 921.001, Florida Statutes (1983), were later declared unconstitutional until enacted by the legislature on July 1, 1984. See Smith v. State, 587 So. 2d 982, 988 (Fla.1989). The State properly concedes that, for this reason, Appellant should be re-sentenced on those counts. We therefore reverse the denial of Appellant’s 3.800 motion on the robbery and burglary counts and remand for re-sentencing either to non-guideline, parole-eligible sentences, or, if Appellant elects, to sentences under the version of the sentencing statutes in effect at the time that Appellant makes, an effective election.1 See §§ 921.002-921.0027, Fla. Stat. (2003); Copeland v. State, 842 So. 2d 1052 (Fla. 3d DCA 2003). See also Braggs v. State, 642 So. 2d 129 (Fla. 3d DCA 1994); Fowler v. State, 641 So. 2d 941 (Fla. 5th DCA 1994).2 Appellant has the right to be present at re-sentencing and to be represented by counsel. See Duhart v. State, 858 So. 2d 1222 (Fla. 3d DCA 2003).
We find no merit in Appellant’s other claims and find that he was correctly sentenced to non-guideline sentences on the kidnapping convictions, which we affirm.
Affirmed in part, reversed in part, remanded for re-sentencing.
. The legislature' replaced the sentencing guidelines with the Criminal Punishment Code, effective 1998. Ch. 97-194, §§ 1/2, at 3674, Laws of Fla. . Appellant points out that he was sentenced to ten years imprisonment on the burglary count, a third degree felony punishable by no more than five years. See § 775.082(3)(d), Fla. Stat. (1981); § 810.02(3), Fla. Stat. (Supp.1982). The trial court must ensure, in re-sentencing, that Appellant's sentences do not exceed the statutory limitations.
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Citator
Cited By
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Williams v. State, 47 So. 3d 906 (Fla. 3d DCA 2010)…guidelines to be unconstitutional for the period prior to July 1, 1984. This meant that persons whose crime date was between October 1, 1983, and June 30, 1984, were entitled to be resentenced. Smith v. State, 537 So. 2d at 987; see Smith v. State, 876 So. 2d 682, 683 (Fla. 3d DCA 2004). The defendant filed a motion under Florida Rule of Criminal Procedure 3.800(a) requesting resentencing under the cases just cited. The trial court denied the motion as having been previously adjudicated. The defendant has ap…
Authorities Cited
- Braggs v. State, 642 So. 2d 129 (Fla. 3d DCA 1994)
- Fowler v. State, 641 So. 2d 941 (Fla. 5th DCA 1994)
- Copeland v. State, 842 So. 2d 1052 (Fla. 3d DCA 2003)
- Duhart v. State, 858 So. 2d 1222 (Fla. 3d DCA 2003)
- Andres v. Indian Creek Phase Iii-B Homeowner's Ass'n, Inc., 858 So. 2d 1222 (Fla. 4th DCA 2003)