ROBERT ARMSTRONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the postconviction court must consider the claim that sentences exceed statutory maximums, but affirmed the denial of another claim.
Defendant pleaded no contest to attempted sexual battery and attempted lewd and lascivious molestation and received concurrent prison and probation se…
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Robert Armstrong appeals the postcon-viction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm the summary denial of ground two but reverse and remand for the postconviction court to consider ground one of Mr. Armstrong’s motion.
Mr. Armstrong pleaded no contest to attempted capital sexual battery and attempted lewd and lascivious molestation by a person over eighteen years upon a child under the age of twelve. In exchange for his pleas, Mr. Armstrong was sentenced to concurrent terms of twenty-three years’ prison followed by ten years’ sex offender probation on each count. The sentences in this case run concurrently with a five-year sentence imposed in another case.
In ground one of his rule 3.800(a) motion, Mr. Armstrong alleged that his sentences are illegal because they exceed the statutory maximum sentences for his first- and second-degree felony convictions. The postconviction court did not address this claim in its order summarily denying Mr. Armstrong’s motion, so we must reverse and remand the case for the postconviction court to consider the merits of this claim.
We note that Mr. Armstrong’s sentences appear to have been imposed pursuant to a negotiated plea agreement. Therefore, if the postconviction court finds that his sentences are illegal, he may be resentenced within the statutory maximum for each count only with the State’s agreement. See McDuffie v. State, 946 So.2d 99, 100 (Fla. 2d DCA 2006); Lang v. State, 931 So.2d 922, 922 (Fla. 2d DCA 2005). If the State does not agree to such sentences, Mr. Armstrong must be allowed to withdraw his plea. See McDuffie, 946 So.2d at 100; Lang, 931 So.2d at 922.
Affirmed in part, reversed in part, and remanded.
KELLY and BLACK JJ., Concur.
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Citator
Cited By
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Parks v. State, 223 So. 3d 380 (Fla. 2d DCA 2017)…both Dominguez and Nedd, sufficient time remained for the defendants to move to vacate their sentences under rule 3.850. In contrast to Dominguez and Nedd, it appears that Parks is entitled to relief under another set of cases, Armstrong v. State, 145 So. 3d 952 (Fla. 2d DCA 2014), McDuffie, 946 So. 2d 99, and Lang v. State, 931 So. 2d 922 (Fla. 2d DCA 2005). The State agrees that these three cases are applicable and suggests that Dominguez and Nedd are procedurally inconsistent with them. In McDuffie, McD…1 / 2
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Sedell v. State, 224 So. 3d 885 (Fla. 2d DCA 2017)…ought relief from an illegal sentence via rule 3.800(a) when the time to file a motion under rule 3.850 had expired. See 223 So. 3d at 381. The Parks opinion relies upon another line of cases to grant relief under rule 3.800. See Armstrong v. State, 145 So. 3d 952 (Fla. 2d DCA 2014); McDuffie, 946 So. 2d 99; Lang v. State, 931 So. 2d 922 (Fla. 2d DCA 2005). Based on these cases, a defendant is entitled to re- [*887] lief on a rule 3.800(a) motion when an illegal sentence results from a negotiated plea. See Ar…
Authorities Cited
- Lang v. State, 931 So. 2d 922 (Fla. 2d DCA 2005)
- Polk Cnty. v. Mitchell, 931 So. 2d 922 (Fla. 2d DCA 2006)
- McDUFFIE v. State, 946 So. 2d 99 (Fla. 2d DCA 2006)