PHILLIP KIRK JOHNSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the thirty-year sentence imposed for attempted robbery with a firearm was illegal because it exceeded the statutory maximum penalty for the offense.
Phillip Kirk Johnson, Jr. was convicted of attempted robbery with a firearm and sentenced to thirty years as a prison releasee reoffender. The jury fo…
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ON CONCESSION OF ERROR
Phillip Kirk Johnson, Jr., appeals the denial of his motion to correct illegal sentence,1 claiming that the thirty-year prison releasee reoffender2 sentence imposed on his 2008 conviction for attempted robbery with a firearm exceeds the maximum penalty allowed by law on that charge. The State properly concedes error.
Robbery with a firearm is a first-degree felony, punishable by life. See § 812.13(1),(2)(a), Fla. Stat. (2008). An attempt to commit the crime is reclassified as a second-degree felony, which carries a maximum penalty of fifteen years in state prison. See § 777.04(4)(c), Fla. Stat. (2008) and § 775.082(3)(c), Fla. Stat. (2008); see also Johnson v. State, 17 So.3d 1290, 1291 (Fla. 2d DCA 2009) (“Robbery with a firearm is a first-degree felony, and the attempt to commit a first-degree felony is a second-degree felony.”). Because of Johnson’s designation as a prison re-leasee reoffender, the trial court must impose the maximum penalty of fifteen years. See § 775.082(9)(a)3.c., Fla. Stat. (2008).
Additionally, the information in this case alleged that Johnson actually possessed the firearm during commission of the crime for purposes of section 775.087(2)(a), Florida Statutes (2008), which requires imposition of a ten-year minimum mandatory sentence. Because the jury found that Johnson actually possessed a firearm while committing this offense, the ten-year mandatory minimum sentence must also be imposed. Id.; McDonald v. State, 957 So.2d 605, 610-12 (Fla.2007).
Accordingly, we reverse the order denying Johnson’s motion and remand with instructions that Johnson be resentenced in accordance with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
MONAGO, C.J., and SAWAYA, J., concur.
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Citator
Cited By
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Gadson v. State, 165 So. 3d 720 (Fla. 5th DCA 2015)…y with a deadly weapon is a first-degree felony punishable by a life sentence, but an attempt to commit that offense is reclassified as a second-degree felony carrying a maximum penalty of 15 years in the Department of Corrections. Johnson v. State, 44 So. 3d 209 (Fla. 5th DCA 2010). Although a first-degree felony punishable by life is punishable by a potentially longer sentence then a standard first-degree felony, for the purpose of sentencing it does not constitute a separate classification of offenses, wh…
Authorities Cited
- McDONALD v. State, 957 So. 2d 605 (Fla. 2007)
- Johnson v. State, 17 So. 3d 1290 (Fla. 2d DCA 2009)