GEORGE W. DANEKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daneker appealed the denial of his second motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court reversed and remanded, finding that Daneker's ten-year sentence for burglary of an unoccupied structure (a third-degree felony with a five-year maximum) exceeded the statutory maximum and thus was illegal.
The court held that the ten-year sentence for burglary of an unoccupied structure was illegal because it exceeded the statutory maximum of five years for a third-degree felony. The sentence must be reversed and remanded for imposition of a sentence within the permissible range.
[1] A motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) may be summarily denied if the claims raised are legally insufficient.
[2] A sentence that exceeds the statutory maximum penalty for the offense committed is an illegal sentence.
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Join FLexlaw to unlock all legal intelligence“Daneker was convicted of burglary of an unoccupied structure, a third-degree felony, which carries a maximum penalty of five years in prison, pursuant to section 775.082(3)(d), Florida Statutes (2002). The permissible sentencing range, calculated on Daneker's scoresheet, was between 30.45 months and the statutory maximum of five years.”
Establishes that the statutory maximum for the offense was five years, not the ten years imposed
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Join FLexlaw to unlock all legal intelligenceIn 2003, Daneker pleaded no contest to multiple felonies including burglary of a structure, attempted burglary, trespass, grand theft, and others. He …
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George W. Daneker challenges a final order that summarily denied his second motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.
In 2003, Daneker pleaded no contest in cases 02-CF-9355, 02-CF-9476 and 02-CF-15443 to burglary of a structure, attempted burglary of a structure, trespass to a construction site, grand theft, driving while license suspended, resisting arrest with violence, and dealing in stolen property. On April 4, 2003, Daneker was sentenced. The written sentence reflected a term of ten years in prison on the dealing in stolen property count and five years on the remaining charges, to run concurrently. The judgment and sentence were affirmed on direct appeal. Daneker v. State, 871 So.2d 221 (Fla. 2d DCA 2004).
On May 13, 2004, Daneker filed his first motion to correct an illegal sentence pursuant to rule 3.800(a), claiming the written sentence did not conform to the oral pronouncement of sentence. Daneker’s motion was granted and the postconviction court amended the written sentence, consistent with the oral pronouncement, to reflect sentences of ten years for burglary of a structure and five years on the remaining charges, to run concurrently.
Daneker subsequently filed the current motion to correct an illegal sentence, claiming the amended sentence violates double jeopardy and is otherwise illegal. Because the postconviction court correctly found no violation of double jeopardy, we do not address that claim. Daneker’s alternative claim, that the ten-year sentence for burglary of a structure is illegal, was not addressed by the postconviction court.
As the State concedes, the sentence for burglary of a structure must be reversed. Daneker was convicted of burglary of an unoccupied structure, a third-degree felony, which carries a maximum penalty of five years in prison, pursuant to section 775.082(3)(d), Florida Statutes (2002). The permissible sentencing range, calculated on Daneker’s scoresheet, was between 30.45 months and the statutory maximum of five years. See § 921.0024(2), Fla. Stat. (2002).
Accordingly, we reverse and remand •with instructions to enter a second amended sentence reflecting a sentence within the permissible range for burglary of a structure in case 02-CF-9355 and concurrent five-year sentences on all other *230charges, with all other conditions of the amended sentence to remain in effect.
Reversed and remanded.
SILBERMAN and LaROSE, JJ., Concur.