GERALDINE KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed summary denial of three Rule 3.850 claims but reversed the illegal ten-year sentence for possession of alprazolam with intent to sell, which exceeded the five-year statutory maximum for third-degree felonies, and remanded for resentencing or plea withdrawal.
A ten-year sentence for possession of a schedule IV controlled substance with intent to sell is illegal because it exceeds the five-year statutory maximum for third-degree felonies.
[1] When a sentence resulting from a negotiated plea agreement is illegal, the trial court must either permit correction of the sentence if the state agrees or allow withdraw…
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Join FLexlaw to unlock all legal intelligenceAppellant Kelly received a ten-year sentence on count III for possession of alprazolam with intent to sell as part of a negotiated plea agreement invo…
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PER CURIAM.
We affirm the trial court’s summary denial of three of appellant’s claims raised in her Florida Rule of Criminal Procedure 3.850 motion. The state agrees that appellant’s claim that her ten-year sentence on count III for possession of alprazolam with intent to sell has merit because the sentence is illegal. Possession of alprazolam, a schedule IV controlled substance, even if it is with intent to sell, is a third degree felony. § 89S.13(l)(a)2, Fla. Stat. (2003). The ten-year sentence exceeds the statutory maximum of five years which is provided for third-degree felonies. The trial court erred in summarily denying this claim, and we reverse and remand for resentencing on this count.
Because the sentence resulted from a negotiated plea agreement involving multiple counts, on remand the state can agree to correction of.the sentence on this particular count or appellant must be permitted to withdraw the plea in its entirety. Howell v. State, 764 So. 2d 780 (Fla. 2d DCA 2000). Appellant is not entitled to de novo resentencing on all counts. If the sentence must be corrected, then the plea agreement would be violated, and unless the state agrees to the corrected sentence, it is not bound by the agreement and could choose to take appellant to trial. Bruno v. State, 837 So. 2d 521 (Fla. 1st DCA 2003).
GUNTHER, KLEIN and SHAHOOD, JJ., concur.
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Atterbury v. State, 991 So. 2d 980 (Fla. 4th DCA 2008)…ted plea. Because of this, upon remand the state must either agree to the correction of the sentence by removing the habitual offender designation on his current sentences, or the state can proceed to trial on all of the charges. See Kelly v. State, 957 So. 2d 108 (Fla. 4th DCA 2007). Reversed and remanded for farther proceedings consistent with this opinion. SHAHOOD, C.J., and KLEIN, J., concur.…
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Faron Jones v. State, 214 So. 3d 774 (Fla. 4th DCA 2017)…Accordingly, we reverse the sentence imposed on the sexual battery count. “[0]n remand the state can agree to correction of the sentence on this particular count or [A]ppellant must be permitted to withdraw the plea in its entirety.” Kelly v. State, 957 So. 2d 108, 109 (Fla. 4th DCA 2007). Reversed and remanded. May and Conner, JJ., concur.…
Authorities Cited
- Bruno v. State, 837 So. 2d 521 (Fla. 1st DCA 2003)
- Howell v. State, 764 So. 2d 780 (Fla. 2d DCA 2000)