FRANK P. CILLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Cillo challenged the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), arguing his sentence exceeded the statutory maximum. The court reversed, finding that Cillo's combined prison, community control, and probation sentence of 44.75 years exceeded the 15-year statutory maximum for second-degree felonies, requiring resentencing.
The court held that a sentence including incarceration, community control, and probation cannot exceed the statutory maximum of fifteen years for second-degree felonies. Although collateral estoppel would typically bar relitigation of the same claim, the court was compelled to correct the manifest injustice because the State conceded the error and the sentence unlawfully exceeded the statutory maximum.
[1] A sentence, including incarceration and probation, cannot exceed the statutory maximum period of incarceration provided by law.
[2] Collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.
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Join FLexlaw to unlock all legal intelligence“Cillo's sentence, which includes the prison portion as well as the community control and probation portions, cannot exceed the statutory maximum of fifteen years.”
Establishes the core holding that the entire sentence, not just incarceration, is limited by the statutory maximum
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Join FLexlaw to unlock all legal intelligenceCillo was convicted of three counts of lewd and lascivious conduct with a child under Florida Statute 800.04. The trial court sentenced him to three c…
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SALCINES, Judge.
Frank P. Cillo challenges the denial of his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Cilio asserts' two claims. We affirm his second claim without comment. Cillo’s first claim asserts that his sentence is illegal because it exceeds the statutory maximum. This claim was previously denied and affirmed on appeal in a prior rule 3.800(a) motion. Cillo v. State, 884 So. 2d 29 (Fla. 2d DCA 2004) (table decision). Although this claim would typically be collaterally estopped, we are nevertheless compelled to correct a manifest injustice because, as the State concedes, Cillo’s sentence exceeds the statutory maximum. See State v. McBride, 848 So. 2d 287, 292 (Fla.2003) (“[Collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.”).
Cilio was convicted of three counts of lewd and lascivious conduct with a child over twelve, but under sixteen, in violation of section 800.04, Florida Statutes (1999). According to his criminal punishment code scoresheet, Cillo’s lowest permissible prison sentence was 12.75 years. The trial court sentenced him to three concurrent terms of 12.75 years in prison followed by two years of community control and thirty years of probation.
Cilio argues that because lewd and lascivious conduct is a second-degree felony, see § 800.04(5)(c)(2), then the maximum sentence he could receive was fifteen years unless the sentences were imposed consecutively for a total of forty-five years, see § 775.082(3)(e), Fla. Stat. (1999). In denying Cillo’s claim, the postconviction court reasoned that because the lowest permissible sentence of 12.75 years did not exceed the statutory maximum of forty-five years, the trial court was within its discretion to sentence Cilio to 44.75 years.
The State concedes error. Cillo’s sentence, which includes the prison portion as well as the community control and probation portions, cannot exceed the statutory maximum of fifteen years. See § 921.0024(2), Fla. Stat. (1999); Fla. R.Crim. P. 3.704(d)(25); see also Myers v. State, 676 So. 2d 1063, 1063 (Fla. 2d DCA 1996) (“A sentence of incarceration and probation cannot exceed the maximum period of incarceration provided by law.”).1
We, therefore, reverse the postconviction court’s order summarily denying Cil-lo’s first claim and remand for resentencing.
Affirmed in part, reversed in part, and remanded.
NORTHCUTT, and DAVIS, JJ., Concur. . A trial court can exceed the statutory maximum under the criminal punishment code if the lowest permissible sentence exceeds the statutory maximum. See § 921.0024(2), Fla. Stat. (1999); Fla. R.Crim. P. 3.704(d)(25). This is not the case in this instance.
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Cited By (11 total)
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Bronk v. State, 25 So. 3d 701 (Fla. 2d DCA 2010)…conviction motion does not preclude relief when the award of jail credit is clearly incorrect as a matter of law and a failure to correct that error would result in manifest injustice. See State v. McBride, 848 So. 2d 287 (Fla.2003); Cillo v. State, 913 So. 2d 1233 (Fla. 2d DCA 2005); Lawton v. State, 731 So. 2d 60 (Fla. 2d DCA 1999); Allen v. State, 989 So. 2d 731 (Fla. 4th DCA 2008). Section 921.161(1), Florida Statutes (2006), provides in pertinent part that “the court imposing a sentence shall allow a def…
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Knight v. State, 6 So. 3d 733 (Fla. 2d DCA 2009)…nt who has already had a rule 3.800(a) illegal sentence claim determined against him is collaterally estopped from relit-igating die same claim except where the application of collateral estoppel would result in a manifest injustice. Cillo v. State, 913 So. 2d 1233 (Fla. 2d DCA 2005).…
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Benny Arzola Martinez v. State, 216 So. 3d 734 (Fla. 4th DCA 2017)…s explaining the sentencing intention and various options to achieve the plea agreement. In reply to the State’s supplemental response, the defendant argued that the State’s position in this case was inconsistent with its position in Cillo v. State, 913 So. 2d 1233 (Fla. 2d DCA 2005), wherein the State conceded that an illegal sentence resulted in a manifest injustice, and the collateral estoppel bar did not apply. Id. at 1233. The trial court agreed with the State and denied the rule 3.800(a) motion. We affi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Myers v. State, 676 So. 2d 1063 (Fla. 2d DCA 1996)