DESTIN TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Destin Turner appeals the denial of his motion for postconviction relief, arguing his combined sentence for attempted carjacking exceeded the statutory maximum. The appellate court reversed, finding the trial court erred in denying the motion and remanded for the trial court to either demonstrate the sentence resulted from scrivener's error or to resentence Turner to a lawful sentence.
The court held that Turner's sentence does exceed the statutory maximum for attempted carjacking, which is limited to 15 years in prison. The trial court erred in denying the motion, and the case is remanded for the trial court to either demonstrate the sentence resulted from scrivener's error with supporting documentation or to resentence Turner to a legal sentence.
[1] A claim that an aggregate sentence exceeds the statutory maximum for an offense is cognizable under Florida Rule of Criminal Procedure 3.800.
[2] A court may treat a motion as if raised under Florida Rule of Criminal Procedure 3.800 in the interest of justice, even if it is untimely under Florida Rule of Criminal P…
Previewing 2 of 5 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“Attempted carjacking is a second-degree felony subject to a sentence of up to 15 years in prison.”
Establishes the applicable statutory maximum penalty for the offense at issue.
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Join FLexlaw to unlock all legal intelligenceTurner was convicted in January 1997 of attempted carjacking and second-degree murder after a jury trial. He was initially sentenced to 60 months prob…
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Destin Turner appeals from an order denying his motion for postconviction relief. We reverse and remand for further proceedings.
On January 15, 1997, the appellant was convicted after a jury trial of attempted carjacking and second-degree murder. He was sentenced to 60 months on probation for attempted carjacking and to 453 months in prison followed by 60 months on probation for second-degree murder. Subsequently, following a successful motion pursuant to Florida Rule of Criminal Procedure 3.800, the appellant was resen-tenced to 274.4 months in prison followed by 5 years on probation for attempted carjacking and to 5 years on probation for second-degree murder.
On June 15, 2011, the appellant filed the instant motion pursuant to rule Florida Rule of Criminal Procedure 3.850,1 claiming that his combined incarcerative sentence and probationary sentence exceed the statutory maximum for the offense of attempted carjacking. The trial court denied the motion, erroneously stating that the appellant’s sentence of 274.4 months in prison followed by 5 years on probation had been imposed as to the second-degree murder charge and therefore was within *533the applicable statutory maximum.2
However, the appellant’s claim has merit. Attempted carjacking is a second-degree felony subject to a sentence of up to 15 years in prison. See §§ 812.133(2)(b); 777.04(4)(a); 775.082(3)(c), Fla. Stat. (1996). The written judgment reflects that the sentence of 274.4 months in prison followed by 5 years on probation was imposed for this offense, for a total sentence of over 27 years.
On appeal, the state agrees that the total sentence exceeds the statutory maximum for attempted carjacking and suggests that it was caused by a scrivener’s error which inadvertently transposed the two sentences. However, nothing in the record before this Court reflects the intent of the sentencing court in this regard.
Accordingly, we reverse and remand for the trial court to attach record portions conclusively demonstrating that the appellant’s sentence is the result of a scrivener’s error or to resentence the appellant to a legal sentence.
REVERSED and REMANDED.
CLARK, MARSTILLER, and SWANSON, JJ„ concur.
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Citator
Authorities Cited
- State v. Akins, 69 So. 3d 261 (Fla. 2011)
- Hughes v. State, 667 So. 2d 910 (Fla. 4th DCA 1996)
- Richardson v. State, 719 So. 2d 39 (Fla. 2d DCA 1998)