ZACHARY ZEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Zachary Zeman appealed his convictions for first-degree murder, attempted robbery with a firearm, armed burglary, and aggravated assault with a firearm. The court affirmed the convictions but reversed the sentence on the attempted robbery charge because it exceeded the statutory maximum and remanded for resentencing.
The court affirmed all convictions but reversed the thirty-year sentence for attempted robbery with a firearm because it exceeded the statutory fifteen-year maximum for a second-degree felony. The court also found a scrivener's error in the judgment listing aggravated assault as a second-degree felony when it is a third-degree felony, but upheld the fifteen-year sentence as legally permissible under the sentencing guidelines.
[1] A sentence imposed in excess of the statutory maximum for a felony constitutes an illegal sentence.
[2] Attempted robbery with a firearm is a second-degree felony with a maximum penalty of fifteen years.
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Join FLexlaw to unlock all legal intelligence“Attempted robbery with a firearm is a second degree felony, with a maximum penalty of fifteen years.”
Establishes the statutory maximum that the trial court exceeded
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Join FLexlaw to unlock all legal intelligenceZeman was convicted of first-degree murder with a firearm, attempted robbery with a firearm, armed burglary of a dwelling with an assault or battery, …
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The defendant appeals his convictions and sentences for first degree murder with a firearm, attempted robbery with a firearm, armed burglary of a dwelling with an assault or battery, and aggravated assault with a firearm. We affirm on all issues except two concerning the defendant’s sentences.
The trial court sentenced the defendant concurrently to a term of life on the first degree murder, thirty years on the attempted armed robbery, fifteen years on the aggravated assault, and to a consecutive life term on the armed burglary of a dwelling with an assault or battery. The defendant argues the trial court erred in imposing sentences in excess of the statutory maximum for the attempted robbery with a firearm and aggravated assault with a firearm charges. We agree in part.
Attempted robbery with a firearm is a second degree felony, with a maximum penalty of fifteen years. § 775.082, Fla. Stat. (2005); Betty v. State, 7 So.3d 586, 587 (Fla. 4th DCA 2009). However, the trial court sentenced the defendant to thir*163ty years as if the charge was a first degree felony. The State acknowledges this error. We therefore reverse this sentence and remand the case to the trial court to re-sentence the defendant on the attempted robbery with a firearm conviction.
The defendant also argues that his sentence on the aggravated assault with a firearm charge of fifteen years is illegal. Aggravated assault with a firearm is a third degree felony, carrying a maximum penalty of five years. §§ 784.021(2) and 775.082(3)(d), Fla. Stat. (2005). However, because the defendant scored 15.56 years in prison on his scoresheet, the court did not err in sentencing him to fifteen years. See § 921.0024(2), Fla. Stat. (2005) (authorizing the trial court to sentence to the lowest permissible sentence); see also Daniels v. State, 838 So.2d 617 (Fla. 1st DCA 2003). Nevertheless, there is a scrivener’s error on the judgment, which lists this charge as a second degree felony.
For these reasons, we reverse the sentence on the attempted robbery with a firearm charge and remand the case for resentencing on this charge and for correction of the scrivener’s error in the judgment concerning the aggravated assault with a firearm charge.
Reversed and Remanded.
MAY, DAMOORGIAN and GERBER, JJ., concur.
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Cited By
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Noel v. State, 59 So. 3d 386 (Fla. 4th DCA 2011)…llowed by two years of community control and three years of probation. Attempted robbery with a firearm, however, is a second-degree felony subject to a maximum sentence of fifteen years in prison. § 775.082(3)(c), Fla. Stat. (2007); Zeman v. State, 46 So. 3d 162, 162-63 (Fla. 4th DCA 2010). Thus, the sentence imposed on the attempted robbery count was erroneous, and we reverse the sentence on that charge and remand for resentencing. Otherwise, we agree that the record contains no issues of arguable [*387] m…
Authorities Cited
- Daniels v. State, 838 So. 2d 617 (Fla. 1st DCA 2003)
- Betty v. State, 7 So. 3d 586 (Fla. 4th DCA 2009)