DONALD GODWIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence exceeding the statutory maximum penalty for the offense is illegal and must be corrected.
Godwin pleaded nolo contendere to possession of child pornography and received a ten-year sentence on each count. The statutory maximum penalty for th…
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Godwin appeals the denial of his motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. The State properly concedes error.
Godwin was charged with twenty-three counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2011). A plea agreement was entered into between the State and God-win, whereby Godwin would plead nolo contendere to Counts I through X and be sentenced to ten years imprisonment. In return, the State would nolle prosequi the remaining thirteen counts. The trial court accepted Godwin’s plea and sentenced him to ten concurrent sentences of ten years imprisonment on each count.
On appeal, Godwin correctly argues that his sentence is illegal because a violation of section 827.071(5) is. a third-degree felony carrying a maximum penalty of five years’ imprisonment. Although Godwin is entitled to be relieved of this illegal sentence, the trial court may, on remand, restructure the defendant’s sentence by changing concurrent terms to consecutive terms, provided that the new sentence conforms to the plea agreement and is not found to be vindictive. See Sands v. State, 899 So.2d 1208, 1210-11 (Fla. 5th DCA 2005) (recognizing that illegal sentence “can be restructured in a manner that effectuates the plea agreement”) (citation omitted); Tilley v. State, 871 So.2d 294, 295 (Fla. 5th DCA 2004) (remanding for resentencing and noting that defendant “is entitled to the benefit of the plea agreement, but nothing more”); Buchanan v. State, 781 So.2d 449, 450 (Fla. 5th DCA 2001).
REVERSED and REMANDED.
SAWAYA and COHEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 147 So. 3d 1077 (Fla. 5th DCA 2014)…. We agree with the State. Our court has authorized trial courts to, on remand, re-structure a defendant’s sentence in a manner which effectuates the original intent of the trial court so long as the new sentence is not vindictive. Godwin v. State, 116 So. 3d 1280 (Fla. 5th DCA 2013). The transcript of the sentencing hearing indicates that the trial court intended that the defendant be under state supervision for thirty years and that she serve a one-year term of probation. The trial court can re-structure th…
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Cortez Hughes v. State, 177 So. 3d 689 (Fla. 5th DCA 2015)…y, appear to support the State’s argument that a trial court has discretion to restructure a sentence so long as the restructuring is not vindictive. However, a closer reading of these cases reveals that they are distinguishable. In Godwin v. State, 116 So. 3d 1280, 1280 (Fla. 5th DCA 2013), the appellant “was charged with twenty-three counts of possession of child pornography under section 827.071(5), Florida Statutes (2011).” Id. He pleaded nolo contendere to counts one through ten and, in exchange, the Stat…
Authorities Cited
- Johnson v. State, 871 So. 2d 294 (Fla. 1st DCA 2004)
- Buchanan v. State, 781 So. 2d 449 (Fla. 5th DCA 2001)
- Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005)