DANIEL JOSEPH LEARY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the mandatory minimum sentence was legal, the overall sentence imposed exceeded the statutory maximum for a second-degree felony and was therefore illegal.
Leary pleaded guilty to aggravated battery with a firearm and violating the "10-20-Life" statute. He was sentenced to thirty years, including a twenty…
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DAMOORGIAN, J.
Appellant, Daniel Leary, appeals his conviction and thirty-year sentence for aggravated battery with a firearm. We affirm the conviction and reverse the thirty-year sentence as illegal because it exceeds the statutory maximum for a second degree felony. Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007).
Leary was charged by information with the second degree felony of aggravated battery with a firearm and/or resulting in great bodily harm under section 784.045, Florida Statutes (2002). The information further provided a violation of the “10-20-Life” statute for discharging the weapon. Fla. Stat. § 775.087(2)(a)l-3(2002).
Leary pleaded guilty and was sentenced to thirty years with twenty-five years mandatory minimum. Thereafter, Leary filed a motion to withdraw his plea. The motion was denied. We find no error in the trial court’s ruling on the motion to withdraw the plea and affirm the judgment.
Appellant also filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court also denied that motion. Appellant was convicted and sentenced under the “10-20-Life” statute, requiring a twenty-five year mandatory minimum for discharging a firearm during the commission of the second degree felony, aggravated battery with a firearm resulting in great bodily injury. Fla. Stat. §§ 784.045(l)(a)l-2, 775.082(3)(c)(2002). The trial court sentenced him to thirty years with twenty-five years mandatory minimum although the maximum penalty for a second degree felony is fifteen years. Appellant argues, and we agree, that although the twenty-five year mandatory minimum is not illegal, the thirty-year sentence is illegal under our recent holding in Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007). Accordingly, we reverse and remand for re-sentencing consisting with our holding in Collazo, supra.
Affirmed in Part, Reversed in Part, and Remanded.
SHAHOOD, C.J., and HAZOURI, J., concur.
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Mendenhall v. State, 48 So. 3d 740 (Fla. 2010)…tate, 898 So. 2d 191 (Fla. 1st DCA 2005). We also disapprove the decisions of the Fourth District Court of Appeal in Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So. 2d [*743] 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So. 2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So. 3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to lif…1 / 2
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Booth v. State, 18 So. 3d 1142 (Fla. 5th DCA 2009)…ion in Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007) and with three other Fourth District cases applying Collazo. See Johnson v. State, 17 So. 3d 847 (Fla. 4th DCA 2009); Thurston v. State, 984 So. 2d 1290 (Fla. 4th DCA 2008); Leary v. State, 980 So. 2d 622 (Fla. 4th DCA 2008). Mendenhall also conflicts with Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008) and Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005), and is currently being reviewed by the Florida Supreme Court. See Mendenhall v. State, No.…
Authorities Cited
- Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007)