MICHAEL W. LEVINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Michael Levine appealed the denial of his motion to correct an illegal sentence imposed for attempted second-degree murder with a firearm. The court held that his 50-year sentence exceeded the statutory maximum of 30 years and was therefore illegal, requiring reversal and remand for resentencing.
The 50-year sentence is illegal because it exceeds the statutory maximum of 30 years for the crime and is not otherwise authorized by law. A judge may only impose a sentence over the mandatory minimum if authorized by law.
[1] A sentence for attempted second-degree murder with a firearm, which reclassifies the offense to a first-degree felony, cannot exceed the statutory maximum of thirty years…
[2] A sentence exceeding the statutory maximum for a felony offense is illegal.
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“The fifty-year sentence exceeds the statutory maximum of thirty years and is illegal.”
The court's holding that the imposed sentence violated statutory maximum penalties
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 2004, Levine was charged with attempted first-degree murder with a firearm and other offenses. He pleaded to attempted second-degree murder with a …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Minimum Mandatory Term cases and more on FLexlaw
Michael W. Levine appeals the denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In 2004, Levine was charged with attempted first-degree murder with a firearm and other offenses. He entered into a negotiated plea to the lesser offense of attempted second-degree murder with a firearm with discharge causing great bodily harm, as well as shooting into an occupied vehicle and discharge of a firearm from a vehicle. The trial court sentenced him to fifty years in prison with a twenty-five year minimum mandatory for the attempted second-degree murder and fifteen years for the other offenses. In the motion at issue, Levine contends that the fifty year sentence on the attempted second-degree murder count is illegal. We agree.
Attempted second-degree murder is a second degree felony. § 782.04(2), Fla. Stat. (2003); § 777.04(4)(c), Fla. Stat. (2003). The use of a firearm reclassifies the offense to a first-degree felony. § 775.087(l)(b), Fla. Stat. (2003). The fifty-year sentence exceeds the statutory maximum of thirty years and is illegal. Wiley v. State, 125 So.3d 235, 241 (Fla. 4th DCA 2013) (holding that section 775.087(2)(a)3. authorizes a court to give a mandatory minimum term between twenty-five years up to life but a “judge may give a sentence over the mandatory minimum selected only if ‘authorized by law' ”). Here, the court imposed only a twenty-five year mandatory minimum. The fifty-year sentence exceeds the statutory maximum, is not otherwise authorized by law, and is therefore illegal. Antoine v. State, 138 So.3d 1064, 1078 (Fla. 4th DCA 2014); Walden v. State, 121 So.3d 660, 661 (Fla. 4th DCA 2013).
The order denying Levine’s motion to correct illegal sentence is reversed, and this matter is remanded for further proceedings.
We certify that our decision is in conflict with Kelly v. State, 137 So.3d 2, 7 (Fla. 1st *108DCA 2014),1 where the First District Court of Appeal disagreed with Wiley.
Reversed and Remanded.
DAMOORGIAN, C.J., STEVENSON and FORST, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cortez Hatten v. State, 203 So. 3d 142 (Fla. 2016)…t. V, § 3(b)(4), Fla. Const. [N.2] Martinez v. State, 114 So. 3d 1119, 1120 (Fla. 2d DCA 2013); Sheppard v. State, 113 So. 3d 148, 149 (Fla. [*144] 2d DCA 2013); Prater v. State, 113 So. 3d 147, 147-48 (Fla. 2d DCA 2013). [N.3] Levine v. State, [162 So. 3d 106 (Fla. 4th DCA 2014) ] (reversing 50-year sentence for attempted second-degree murder where trial court only imposed a 25-year minimum mandatory term under the 10-20-Life statute and certifying conflict with Kelly); see also Antoine v. State, 138 So.…
-
Hill v. State, 194 So. 3d 341 (Fla. 4th DCA 2015)…PER CURIAM. Affirmed. See Mendenhall v. State, 48 So. 3d 740, 748 (Fla.2010). Compare Levine v. State, 162 So. 3d 106 (Fla. 4th DCA 2014) (certifying conflict with Kelly v. State, 137 So. 3d 2 (Fla. 1st DCA 2014), petition for review-granted, No. SC14-916, 2014 WL 5093407 (Fla.2014)). TAYLOR, CIKLIN and GERBER, JJ., concur. ■ ■…
-
Rocker v. State, 187 So. 3d 910 (Fla. 4th DCA 2016)…ned in Appellant’s post-trial motion to disqualify when denying the motion; and finally, (5) Appellant’s life sentences for each of his attempted second degree murder with a firearm convictions are illegal pursuant to our holding in Levine v. State, 162 So. 3d 106 (Fla. 4th DCA 2014). We affirm on issues 1-4 and reverse on issue 5 — the sentencing issue. In Levine, we held that a fifty-year sentence for attempted second-degree murder with a firearm with discharge’ causing great bodily harm was illegal. 162 S…
Authorities Cited
- Wiley v. State, 125 So. 3d 235 (Fla. 4th DCA 2013)
- Kelly v. State, 137 So. 3d 2 (Fla. 1st DCA 2014)
- Narcisse Antoine v. State, 138 So. 3d 1064 (Fla. 4th DCA 2014)
- Brendle v. Jennings, 138 So. 3d 1064 (Fla. 5th DCA 2014)
- Quinten Walden v. State, 121 So. 3d 660 (Fla. 4th DCA 2013)