RICCI SCHMIDT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence exceeding the statutory maximum for the underlying offense, even if the time served is within the maximum, is illegal.
Defendant was convicted of DUI manslaughter, a second-degree felony. His total sentence, including prison time and probation, exceeded the statutory m…
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PER CURIAM.
Defendant appeals the denial of his rule 3.800(a) motion to correct an illegal sentence, arguing that his sentence is illegal because it exceeds the statutory maximum for a second degree felony and that he should be resentenced. We agree.
Defendant was convicted of DUI manslaughter for an offense in 1992. He was originally sentenced to eight years in prison followed by three years probation. After violating probation, he was sentenced in 1998 to eleven and a half years in prison, followed by two years probation. On September 26, 2003, he entered a plea admitting a violation of his probation. His probation was reinstated and extended four years from the original termination date.
Appellant’s total sentence of 11.5 years in prison followed by six years probation exceeds the statutory maximum for DUI manslaughter, a second degree felony. § 316.193(3)(c)3, Fla. Stat. (1992); § 775.082(3)(c), Fla. Stat. (1992).
The attached records and the state’s arguments do not refute this claim. The state suggests that his sentence is not illegal because the amount of time he actually served is within the statutory maximum. The state also argues that he is not entitled to credit for 11.5 years because he did not serve this entire sentence. Notwithstanding the amount of time he served in prison or the credit he received, the sentence imposed, which totals 17.5 years, exceeds the maximum allowed by law. See Gonzales v. State, 816 So. 2d 720, 722 (Fla. 5th DCA 2002) (observing “after revocation of probation, the combination of sanctions (prison term and probation) cannot exceed the statutory maximum for the underlying offense”).
Accordingly, we reverse and remand for resentencing within the statutory maximum.
FARMER, C.J., GUNTHER and TAYLOR, JJ., concur.
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Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006)…ishable by up to fifteen years’ imprisonment.1 §§ 782.04(2), 777.04(4)(c), 775.082(3)(c), Fla. Stat. (2001). A combined sentence of prison and probation which exceeds the statutory maximum for an offense is an illegal sentence. See Schmidt v. State, 884 So. 2d 471, 472 (Fla. 4th DCA 2004). However, to preserve this issue for review on direct appeal, a defendant must either object or file a motion to correct sentencing error pursuant to rule 3.800(b). See Washington v. State, 814 So. 2d 1187, 1189 (Fla. 5th DC…
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Griffin v. State, 979 So. 2d 1253 (Fla. 4th DCA 2008)…lows: There is case law that holds that a Defendant receives a second opportunity to file a rule 3.800(c) motion after resen-tencing pursuant to a direct appeal. See Word [sic] v. State, 854 So. 2d 260 (Fla. 1st DCA 2003), see also Vrobel v. State, 884 So. 2d 471 (Fla. 4th DCA 2004). However, there is no rule that suggests a Defendant receive additional opportunities after each resentencing pursuant to a collateral appeal on a sentence originally pronounced on July 8,1991. (Bold emphasis added). Ward v. St…
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Stewart v. State, 990 So. 2d 658 (Fla. 4th DCA 2008)…s of this court’s mandate on direct appeal. Stewart v. State, 976 So. 2d 82 (Fla. 4th DCA 2008). Accordingly, we grant the petition and remand this case for the circuit court to consider the rule 3.800(c) motion on the merits. See Vrobel v. State, 884 So. 2d 471 (Fla. 4th DCA 2004); McCalla v. State, 814 So. 2d 1209, 1210 (Fla. 4th DCA 2002). FARMER, TAYLOR and MAY, JJ., concur.…
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- Gonzales v. State, 816 So. 2d 720 (Fla. 5th DCA 2002)