JULIUS FRANKLIN ROCKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2016-03-09
No. 4D14-1271
TAYLOR and GERBER, JJ„ concur.
187 So. 3d 910 Florida District Court of Appeal, Fourth District (2016)

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Synopsis

Julius Rocker appeals his convictions and life sentences for two counts of attempted second-degree murder with a firearm. The court affirms the convictions on most issues but reverses the life sentences as illegal under Levine v. State, holding that the 10-20-Life statute does not authorize sentences exceeding the statutory maximum of thirty years for this offense.


Holding

The court affirmed the convictions on evidentiary and procedural issues but reversed the life sentences as illegal. Life sentences for attempted second-degree murder with a firearm exceed the statutory maximum of thirty years and are not authorized by the 10-20-Life statute, which permits only a mandatory minimum between twenty-five years and life, not sentences exceeding the statutory maximum.


Headnotes

[1] A sentence exceeding the statutory maximum for the underlying offense, even when authorized by the 10-20-Life statute, is illegal.

[2] The 10-20-Life statute does not permit a court to impose a sentence exceeding the statutory maximum for the underlying offense.

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Key Quotes

“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(1)(b), Fla. Stat. (2003). The fifty-year sentence exceeds the statutory maximum of thirty years and is illegal.”

Establishes the legal framework for determining whether a sentence exceeds the statutory maximum for attempted second-degree murder with a firearm.

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Facts & Procedural History

Rocker was convicted of two counts of attempted second-degree murder with a firearm. A police officer testified that Rocker's vehicle engine was still…

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Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

Appellant, Julius Rocker, appeals his judgments and sentences for two' counts of attempted second degree murder with a firearm. Appellant, who represented himself at trial, raises the following arguments on appeal: (1) the court erred in allowing the State to submit evidence of his vehicle because the State failed to preserve the vehicle; (2) the court abused its discretion and impermissibly allowed a police officer to testify that the engine in Appellant’s vehicle was still warm when the officer found the vehicle shortly after the crime was committed; (3) the court erred by denying Appellant’s motion for a mistrial after a fingerprint analyst referred to the national crime database, which suggested improper collateral crime evidence; (4) the trial judge, a successor to two disqualified judges, erred in commenting on the facts contained 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 So.3d at 107. In doing so, we rejected the State’s contention that the provision in *911section 775.087 (“the 10-20-Life statute”) allowing the court to impose a mandatory minimum term between twenty-five years and up to life permitted the court to impose a sentence exceeding the statutory maximum for the underlying offense. We reasoned:

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(1)0»), 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 law1 ”). 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).

Id.

The State concedes that Levine merits reversal, but urges us to reconsider our holding in light of the First District’s decision in Kelly v. State, 137 So.3d 2, 7 (Fla. 1st DCA 2014), wherein the court held that a defendant’s forty-year sentence, which exceeded the thirty-year statutory maximum, was not illegal due to the-application of the 10-20-Life statute. We decline to follow Kelly and our decision in Levine remains the law of this district.1 Accordingly, we reverse the two life sentences for attempted second degree murder, with a firearm and remand for resentencing in light of our holding in Levine.

Affirmed in part and reversed in part and remanded.

TAYLOR and GERBER, JJ„ concur.


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