DONALD STEPHEN FLEWELLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Flewellen appeals the summary denial of his motion to correct an illegal sentence. The court reverses, finding that concurrent twenty-five-year sentences for each second-degree felony count illegally exceeded the fifteen-year statutory maximum per count, even though the aggregate sentence was within permissible limits under the plea agreement.
The concurrent twenty-five-year sentences are illegal because they exceed the fifteen-year statutory maximum for second-degree felonies on each individual count. A sentence cannot exceed the statutory maximum for a particular count even as part of a negotiated plea agreement, though consecutive sentences may be imposed to effectuate the plea agreement so long as neither individual sentence exceeds its statutory maximum.
[1] A sentence that exceeds the statutory maximum for a felony is illegal, even if imposed as part of a negotiated plea agreement.
[2] A trial court may not impose general sentences on multiple convictions.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A sentence which exceeds the statutory maximum is an illegal sentence, and an illegal sentence cannot be imposed even as part of a negotiated plea agreement.”
Establishes the core principle that statutory maximums cannot be exceeded regardless of plea agreements
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Join FLexlaw to unlock all legal intelligenceFlewellen was on probation for two second-degree felonies when he allegedly violated probation. Pursuant to a negotiated plea agreement, he admitted t…
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The defendant appeals an order summarily denying his rule 3.800(a) motion to correct illegal sentence. We reverse.
The defendant was on probation for two second-degree felonies when he allegedly violated his probation. Pursuant to a negotiated agreement, the defendant admitted to the violation in exchange for a sentence of twenty-five years in prison. The waiver of rights form indicated that the maximum sentence was thirty years. The sentencing document for both counts I and II reflects a sentence of twenty-five years, concurrent.
The defendant filed a rule 3.800(a) motion. The motion essentially advanced two distinct claims: (1) the scoresheet included one too many prior DUI with serious bodily injury offenses, for which he was assessed nine additional points; and (2) the twenty-five year sentence for each second-degree felony exceeded the fifteen-year statutory maximum for each count.
The State responded and the trial court found that any scoresheet error was *211harmless because the defendant was sentenced pursuant to a valid plea agreement, providing for a twenty-five-year sentence. The trial court also found the twenty-five-year sentence was not illegal because the defendant could have been sentenced to an aggregate sentence of up to thirty years for the two second-degree felonies. We find merit in the defendant’s second argument.
“General sentences on multiple convictions are improper.” Durant v. State, 763 So.2d 1157, 1158 (Fla. 4th DCA 2000). “A sentence which exceeds the statutory maximum is an illegal sentence, and an illegal sentence cannot be imposed even as part of a negotiated plea agreement.” Wheeler v. State, 864 So.2d 492, 492 (Fla. 5th DCA 2004) (citations omitted). “A sentence can exceed the statutory maximum, but only if the lowest permissible sentence under the sentencing code exceeds the statutory maximum.” Id.
Here, the concurrent twenty-five year sentences imposed for each count exceeded the fifteen-year statutory maximum for the second degree felonies. Id. The sentence is therefore illegal and must be corrected.
We therefore reverse the sentence and remand for the trial court to correct the sentences so that neither exceeds the statutory maximum. The trial court may impose consecutive sentences in such a way that the plea agreement is effectuated, so long as neither sentence exceeds the statutory maximum and the cumulative total does not exceed the original twenty-five year sentence. See Tilley v. State, 871 So.2d 294, 295 (Fla. 5th DCA 2004); Everett v. State, 824 So.2d 211, 213 (Fla. 1st DCA 2002); Norton v. State, 731 So.2d 762, 763 (Fla. 4th DCA 1999).1
Reversed and Remanded.
MAY, C.J., WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cosmesella v. State (Fla. 4th DCA 2020)…ry maximum for that conviction. We agree with the state’s concession of error. “A sentence can exceed the statutory maximum, but only if the lowest permissible sentence under the sentencing code exceeds the statutory maximum.” Flewellen v. State, 98 So. 3d 210, 211 (Fla. 4th DCA 2012) (citation omitted). Here, the defendant’s lowest permissible sentence was 23.95 years, which did not ---PAGE 3--- 3 exceed the thirty-year statutory maximum for robbery with a firearm. See §§ 812.13(2)(b), 775.082(3)(b)…
Authorities Cited
- Johnson v. State, 871 So. 2d 294 (Fla. 1st DCA 2004)
- Wheeler v. State, 864 So. 2d 492 (Fla. 5th DCA 2004)
- Everett v. State, 824 So. 2d 211 (Fla. 1st DCA 2002)
- Britt Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999)
- Durant v. State, 763 So. 2d 1157 (Fla. 4th DCA 2000)