ERIC S. WALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Wallen appealed the summary denial of his post-conviction motion challenging the legality of a 15-year sentence for aggravated assault with a deadly weapon, where the statutory maximum was five years (or ten years if sentenced as a habitual or violent felony offender). The court vacated the illegal sentence in part and remanded for the state to choose between accepting a legal sentence or withdrawing from the plea agreement to proceed to trial.
A defendant may attack an illegal sentence even if he agreed to it in a plea bargain. The court vacated the illegal fifteen-year sentence for aggravated assault with a deadly weapon and remanded, requiring the state to either agree to a legal sentence on that count or withdraw from the plea agreement so the case may proceed to trial on all counts.
[1] A defendant's agreement to an illegal sentence does not preclude them from attacking that sentence as illegal.
[2] A fifteen-year sentence for aggravated assault with a deadly weapon, a third-degree felony with a statutory maximum of five years, may be an illegal sentence.
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“While Wallen agreed to the longer fifteen-year sentence, this does not bar him from attacking the same as an illegal sentence.”
Establishes the core holding that a defendant may challenge an illegal sentence even if agreed to in a plea bargain
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Join FLexlaw to unlock all legal intelligenceWallen entered into a plea agreement to serve a fifteen-year sentence for aggravated assault with a deadly weapon, a third-degree felony under Florida…
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PER CURIAM.
Eric S: Wallen appeals the summary denial of his Florida Rules of Criminal Procedure 3.800(a) motion in which he alleged that although he entered-into a plea agreement to serve a fifteen-year sentence for aggravated assault with a deadly weapon, the sentence is illegal.
Aggravated assault with a deadly weapon is a third-degree felony under section 784.021(l)(a), Florida Statutes (1991), with a statutory maximum of five years. It is not clear from the record whether Wallen was sentenced as an habitual felony offender or a violent felony offender for this offense, but the maximum sentence for the habitual felony offender is ten years with a five-year minimum mandatory sentence if he was found to be a violent felony offender. See § 775.084(4)(b)3, Fla. Stat. (1991). While Wallen agreed to the longer fifteen-year sentence, this does not bar him from attacking the same as an illegal sentence. See, e.g., Larson v. State, 572 So. 2d 1368 (Fla.1991); Wheeler v. State, 864 So. 2d 492 (Fla. 5th DCÁ 2004).
The . aggravated assault with a deadly weapon count was only one of-several counts that resulted in consecutive and concurrent sentences totaling seventy-five-years. We only vacate the sentence for the aggravated assault with a deadly weapon count, rejecting Wallen’s claim that his sentence for aggravated battery was also illegal. We remand to allow the State the option of agreeing to a legal sentence on the aggravated assault with a deadly weapon count or withdrawing from the plea agreement so that it may proceed to trial on all counts. See, e.g., Barthel v. State, 862 So. 2d 28 (Fla. 2d DCA 2003) (holding where illegal sentence was imposed pursuant to plea bargain, state must be given option of-either agreeing to re-sentencing to legal sentence or proceed to trial on original charges); Tarlhert v. State, 766 So. 2d 457 (Fla. 5th DCA 2000) (holding where defendant received illegal sentence under unconstitutional guidelines pursuant to a plea bargain, state has option of proceeding to trial or agreeing to have legal sentence imposed); Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000) (holding if state does not agree to re-sentencing defendant to legal sentence, state should be allowed to withdraw plea and matter may proceed to" trial on original charges).
‘SENTENCE VACATED IN PART; REMANDED.
PETERSON, GRIFFIN and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Valentine Rodriguez v. State, 883 So. 2d 908 (Fla. 2d DCA 2004)…tent in the agreement. Thus on remand, the State can either consent to an alternate sentencing scheme for these crimes or withdraw from the plea agreement and proceed to trial. See Casey v. State, 788 So. 2d 1121 (Fla. 2d DCA 2001); Wallen v. State, 877 So. 2d 737 (Fla. 5th DCA 2004). Reversed and remanded. FULMER and STRINGER, JJ., Concur. . See § 784.021, Fla. Stat. (2001). . See § 784.03(2), Fla. Stat. (2001). . Although these cases hold that enhanced sentences cannot run consecutively in a case invol…
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Almenares v. State, 882 So. 2d 493 (Fla. 5th DCA 2004)…ated plea agreement in which the State agreed to reduce the charges, the State must be given the option on remand to agree to a legal sentence or to withdraw from the plea agreement and proceed to trial on the original charges. See, Wallen v. State, 877 So. 2d 737, 29 Fla. L. Weekly D1059 (Fla. 5th DCA April 30, 2004); Barthel v. State, 862 So. 2d 28 (Fla. 2d DCA 2003). We reverse the trial court’s denial of Almenares’ rule 3.800 motion and remand this matter to the trial court for further proceedings. We fu…
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Brown v. State, 896 So. 2d 808 (Fla. 5th DCA 2005)…first degree felony either under chapter 810 or 775. Finally, the State correctly argues it should be allowed on remand to either agree to a legal sentence or withdraw from the plea agreement and proceed to trial on all counts. See Wallen v. State, 877 So. 2d 737 (Fla. 5th DCA 2004). Accordingly, we reverse the sentence and remand to allow the State to accept a legal sentence for the lesser charge or retry Brown on all counts. Wallen. REVERSED and REMANDED. SAWAYA, CJ., and SHARP, W., J., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Elmario Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000)
- Wheeler v. State, 864 So. 2d 492 (Fla. 5th DCA 2004)
- Barthel v. State, 862 So. 2d 28 (Fla. 2d DCA 2003)
- Climmie Tarlbert, Jr. v. State, 766 So. 2d 457 (Fla. 5th DCA 2000)