ANDRE ISAIAH DUNBAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this Anders appeal, the defendant was convicted of two counts of attempted second-degree murder with a firearm and two counts of robbery with a firearm, receiving concurrent forty-year sentences. Although appellate counsel found no reversible error, the appellate court's independent review revealed that the sentences exceeded the statutory maximum of thirty years for firearm-enhanced attempted second-degree murder, but the error was not preserved for review because it was not raised at sentencing or in a timely post-sentencing motion.
Although the forty-year sentences clearly exceed the statutory maximum, the sentencing error cannot be reviewed on appeal because it was not preserved at sentencing or raised in a timely post-sentencing motion pursuant to Florida Rule of Criminal Procedure 3.800(b). The convictions and sentences are affirmed without prejudice to the defendant's right to seek appropriate timely postconviction relief.
[1] Sentencing errors that occur after the effective date of amendments to Florida Rule of Criminal Procedure 3.800(b) cannot be reviewed on appeal if the issue was not raise…
[2] Attempted second-degree murder committed with a firearm is reclassified to a first-degree felony, subject to an enhanced sentence not to exceed thirty years.
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Join FLexlaw to unlock all legal intelligence“The concurrent forty-year sentences that Dunbar received for his convictions of attempted second-degree murder are clearly in excess of the statutory maximum.”
Establishes that the trial court imposed sentences exceeding the legal limit.
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Join FLexlaw to unlock all legal intelligenceAndre Dunbar was convicted by jury of two counts of attempted second-degree murder with a firearm and two counts of robbery with a firearm. The jury m…
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In this Anders appeal,1 appellate counsel advised this Court that in good faith, he could not argue that reversible error occurred in the trial court. Pursuant to the constitutional mandate of Anders, and the instruction of the Florida Supreme Court in State v. Causey, 503 So.2d 321 (Fla.1987), we undertook an independent review of the record. Although we affirm the convictions and sentences, our review revealed a sentencing error that was not preserved by objection at sentencing or by motion to correct sentence. As a result, the issue is not preserved for appellate review and we are constrained to affirm.
Andre Dunbar was convicted of two counts of attempted second-degree murder *55with a firearm, and two counts of robbery with a firearm. The jury also made a special finding that Dunbar discharged the firearm. On each count, Dunbar was sentenced to forty years imprisonment.2 Attempted second-degree murder is a second-degree felony. See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2009). If, as in the instant case, the offense is committed with a firearm, the crime is reclassified to a first-degree felony pursuant to section 775.087(1)(b), subject to an enhanced sentence not to exceed thirty years. See Miller v. State, 460 So.2d 373, 374 (Fla.1984); see also § 775.082(3)(b), Fla. Stat. (2009).
The concurrent forty-year sentences that Dunbar received for his convictions of attempted second-degree murder are clearly in excess of the statutory maximum. However, sentencing errors that occur after the effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on the face of the record, cannot be reviewed by an appellate court if, as here, the issue was not raised at sentencing or in a timely post-sentencing proceeding pursuant to rule 3.800. See generally Maddox v. State, 760 So.2d 89 (Fla.2000); Washington v. State, 814 So.2d 1187 (Fla. 5th DCA 2002). Accordingly, we affirm Dunbar’s convictions and sentences without prejudice to his right to seek appropriate and timely postconviction relief. Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005); Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002).
AFFIRMED.
ORFINGER, TORPY and EVANDER, JJ., concur.
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C.C. v. State, 150 So. 3d 216 (Fla. 4th DCA 2014)…tion of the First District that the failure to preserve a sentencing error by moving to correct pursuant to Florida Rule of Criminal Procedure 3.800(b) precludes the appellate court from raising the issue even in an Anders case. See Dunbar v. State, 35 So. 3d 54, 54 (Fla. 5th DCA 2010). In Dunbar, the appellate court acknowledged that the sentence imposed was clearly in excess of the statutory maximum (by ten years), but it still could not be corrected, because appellate counsel had not filed a 3.800(b) mot…
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Green v. State, 83 So. 3d 883 (Fla. 5th DCA 2012)…PER CURIAM. We affirm Green’s convictions and sentence without prejudice to his right to seek appropriate and timely postconviction relief. See Dunbar v. State, 35 So. 3d 54, 55 (Fla. 5th DCA 2010) (sentencing errors that occur after effective date of amendment to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on face of record, cannot be reviewed by appellate court if issue i…
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Williams v. State, 56 So. 3d 899 (Fla. 5th DCA 2011)…PER CURIAM. We affirm Williams’ convictions and sentences without prejudice to his right to [*900] seek appropriate and timely post-conviction relief. See Dunbar v. State, 35 So. 3d 54, 55 (Fla. 5th DCA 2010) (sentencing errors that occur after effective date of amendment to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on face of record, cannot be reviewed by appellate court if issue i…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Miller v. State, 460 So. 2d 373 (Fla. 1984)
- Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002)
- Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002)
- Raynard Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005)