ANDRES RIGUEIRO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andres Rigueiro appealed a post-conviction denial of relief from a 40-year concurrent sentence for four counts of sexual battery. The court affirmed the denial of most claims but found the sentence illegal under Florida's Criminal Punishment Code because it fell between the minimum required sentence of 29.875 years and the statutory maximum of 15 years per count, and remanded for resentencing.
The sentences were illegal because they violated section 921.0024(2), Florida Statutes, which required either the CPC minimum (29.875 years) or life imprisonment when the minimum exceeded the statutory maximum. The court reversed and remanded for resentencing within legal parameters.
[1] A sentence is illegal if the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum sentence.
[2] When the total sentencing points are greater than or equal to 368, a court may sentence an offender to life imprisonment.
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“If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.”
Establishes the mandatory sentencing requirement that governed Rigueiro's case under the Criminal Punishment Code
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Join FLexlaw to unlock all legal intelligenceRigueiro was convicted of four counts of sexual battery and sentenced to 40 years concurrent imprisonment followed by five years sex offender probatio…
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Andres Rigueiro was convicted of four counts of sexual battery (great force not used) and sentenced to forty years in prison on each count, to run currently and be followed by five years of sex offender probation. We affirmed the judgment on appeal. Rigueiro v. State, 919 So.2d 688 (Fla. 4th DCA 2006).
In a revised motion for post-conviction relief, Rigueiro raised nine separate claims. We affirm the trial court’s summary denial of all of them, except for his claims relating to the legality of his sentences, as discussed below. In particular, Rigueiro has demonstrated that his Criminal Punishment Code (CPC) scoresheet totaled 506 points and provided that his lowest permissible prison sentence was calculated to be 358.5 months in prison, or 29.875 years. The trial court sentenced Rigueiro to forty years in prison on each of the counts, to run concurrently, followed by five years of sex offender probation.
Section 921.0024(2), Florida Statutes (2001), provides in part:
If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed. If the total sentence points are greater than or equal to 368, the court may sentence the offender to life imprisonment. An offender sentenced to life imprisonment under this section is not eligible for any form of discretionary early release, except executive clemency or conditional medical release under s. 947.149.
Here, the lowest permissible sentence did exceed the statutory maximum of fifteen years for each of the second degree felonies in this case. As well, the total sentencing points were greater than 363. This left the sentencing court with the option of life sentences or sentences of 358.5 months (29.875 years) in prison, the lowest permissible CPC sentence.
However, the trial court actually sentenced Rigueiro to forty-year concurrent prison terms, followed by five years of sex offender probation. This was an illegal sentence, as the State has conceded in its response filed in this court. See Cliatt v. State, 970 So.2d 902 (Fla. 5th DCA 2007). We recognize, as the court did in Cliatt, that on remand the court may restructure its sentence to accomplish its intended goals at the original sentencing, so long as the new sentence is not deemed to be more *855severe than the one originally imposed, absent some intervening event. Id. at 902-03 (citing Blackshear v. State, 531 So.2d 956 (Fla.1988)).
In light of the above, we need not separately address the claim of ineffective assistance of counsel for failure to object to sentencing as illegal on the same grounds as discussed here.
Affirmed in part, Reversed in part, and Remanded.
DAMOORGIAN, C.J., TAYLOR and CONNER, JJ., concur.
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Dennard v. State, 157 So. 3d 1055 (Fla. 4th DCA 2014)…g. The trial court could have achieved its sentencing goal that defendant receive twenty-two years in prison for this set of offenses by structuring the sentences consecutively. Blackshear v. State, 531 So. 2d 956, 958 (Fla.1988); Rigueiro v. State, 132 So. 3d 853, 854-55 (Fla. 4th DCA 2013). As the Florida Supreme Court recognized in McBride, the mere existence of an illegal sentence is not equivalent to a manifest injustice. 848 So. 2d at 292 (holding that the illegal thirty-year habitual felony offender se…
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Benny Arzola Martinez v. State, 216 So. 3d 734 (Fla. 4th DCA 2017)…er 2014, the defendant filed the current rule 3.800(a) motion, once again attacking the thirty-year sentence on count one. He argued that his sentence resulted in manifest injustice apparent on the face of the record. He relied on Rigueiro v. State, 132 So. 3d 853 (Fla. 4th DCA 2013). He argued it would be improper for the trial court to resentence him on the other counts notwithstanding the benefit he received from the State’s agreement. The State again responded that collateral estoppel prevented the defen…
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Spires v. State (Fla. 4th DCA 2019)…rida Rule of Criminal Procedure 3.800(a), arguing that his sentence exceeded the 15-year statutory maximum for the crimes. The trial court granted - 2 - appellant’s motion and ordered a new sentencing hearing, pursuant to Rigueiro v. State, 132 So. 3d 853 (Fla. 4th DCA 2013). Prior to the resentencing hearing, appellant moved for a downward departure, with grounds similar to those raised at the initial sentencing hearing. In addition, appellant raised matters arising after his original sentenc…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blackshear v. State, 531 So. 2d 956 (Fla. 1988)
- Cliatt v. State, 970 So. 2d 902 (Fla. 5th DCA 2007)
- Rigueiro v. State, 919 So. 2d 688 (Fla. 4th DCA 2006)
- State v. Kessler, 919 So. 2d 688 (Fla. 4th DCA 2006)