THOMAS C. GEFTOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirms the conviction and sentence, but notes that an unpreserved sentencing error cannot be corrected in an Anders appeal.
[1] A conviction and sentence will be affirmed on appeal when the record supports the judgment and no reversible error is found.
[2] A sentence is illegal if it is based on a predicate offense not designated by statute for enhanced punishment.
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Join FLexlaw to unlock all legal intelligenceDefendant pled no contest to strong arm robbery and aggravated fleeing or eluding, receiving a negotiated sentence including a prison releasee reoffen…
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In this Anders1 appeal, we affirm the conviction and sentence. Our review of the record, however, indicates a possible sentencing error.
The defendant below pled no contest to two offenses: strong arm robbery and aggravated fleeing or eluding at high speed. He entered into a negotiated plea of fifteen years and a day as a habitual felony offender on both offenses and fifteen years mandatory minimum as a prison releasee reoffender (PRR) on the second offense. The court accepted the plea, adjudicated him guilty and sentenced him in accordance with the plea agreement.
*912The defendant argues that his PRR sentence is illegal because the PRR statute does not make aggravated fleeing and eluding a predicate offense for such enhanced punishment. By the PRR statute’s clear text, aggravated fleeing and eluding is not designated as a predicate crime. § 775.082(9)(a), Fla. Stat. (2008). The State argues that when the fleeing/eluding is aggravated, thus resulting in violence, the predicate is satisfied. We reject this argument because violence must be a necessary element of the felony. Paul v. State, 958 So.2d 1135, 1137 (Fla. 4th DCA 2007).
The defendant, though, did not preserve this issue for appeal. We recognize that “a defendant cannot assent to an illegal sentence.” Gregory v. State, 997 So.2d 1287, 1288 (Fla. 3d DCA 2009). We further acknowledge that “a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So.2d 203, 205 (Fla. 4th DCA 2002). However, unpreserved sentencing errors cannot be corrected in an Anders case. Colon v. State, 869 So.2d 1290 (Fla. 4th DCA 2004). Accordingly, our affir-mance is without prejudice to the defendant filing an appropriate post-conviction motion raising any such unpreserved sentencing issues. Id.
Affirmed.
FARMER, HAZOURI and GERBER, JJ., concur.
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Williams v. State, 51 So. 3d 620 (Fla. 1st DCA 2011)…Ashley v. State, 850 So. 2d 1265, 1267-68 (Fla.2003). This error was not properly preserved for our review by a contemporaneous objection or a rule 3.800(b)(2) motion and, thus, we cannot correct the error in this direct appeal. See Geftos v. State, 12 So. 3d 910, 912 (Fla. 4th DCA 2009); Young v. State, 988 So. 2d 1128, 1129 (Fla. 2d DCA 2008). Accordingly, we affirm Appellant’s judgment and sentence without prejudice to any right that he may have to file an appropriate post-conviction motion concerning the…
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Powell v. State, 167 So. 3d 392 (Fla. 2015)…the intent and purpose of rule 3.800(b)(2). . See, e.g., Conley v. State, 146 So. 3d 1266, 1266 (Fla. 5th DCA 2014); Arline v. State, 155 So. 3d 1158, 1160 (Fla. 4th DCA 2014); Dunbar v. State, 35 So. 3d 54, 54 (Fla. 5th DCA 2010); Geftos v. State, 12 So. 3d 910, 912 (Fla. 4th DCA 2009); Woodard, v. State, 6 So. 3d 726, 727 (Fla. 2d DCA 2009); Young v. State, 988 So. 2d 1128, 1129 (Fla. 2d DCA 2008); Nunez v. State, 912 So. 2d 693, 693 (Fla. 2d DCA 2005); Colon v. State, 869 So. 2d 1290, 1290 (Fla. 4th DCA…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Peterson Paul v. State, 958 So. 2d 1135 (Fla. 4th DCA 2007)
- Colon v. State, 869 So. 2d 1290 (Fla. 4th DCA 2004)
- Durwin Torbert v. State, 832 So. 2d 203 (Fla. 4th DCA 2002)
- Gregory v. State, 997 So. 2d 1287 (Fla. 3d DCA 2009)