ERIC MUNOZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that appellate counsel was ineffective for failing to challenge an illegal general sentence and a sentence exceeding the statutory maximum.
[1] Appellate counsel is ineffective for failing to file a motion challenging an illegal sentence.
[2] A general sentence imposed on multiple counts is illegal if it exceeds the statutory maximum for any of the individual counts.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of drug offenses and received a general sentence. He petitioned for relief, alleging ineffective assistance of appellate c…
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Eric Munoz (the defendant) files a petition, alleging ineffective assistance of appellate counsel. Because the defendant’s sentence is illegal and appellate counsel was ineffective for failing to file a motion challenging the sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b), we grant the petition, in part.
The defendant was convicted and sentenced on multiple counts of delivery of cocaine within 1000 feet of a school and delivery of cannabis within 1000 feet of a school. The court imposed a general sentence of fifteen years in the Department of Corrections followed by ten years’ probation on all counts.
The defendant filed this petition which included allegations that appellate counsel was ineffective for failing to: 1) preserve and argue an illegal general sentence, and 2) argue that certain of the sentences exceed the statutory maximum. The State properly concedes that the defendant was entitled to receive relief on both claims.
The sentence on all the counts is an illegal general sentence. See Inclima v. State, 570 So.2d 1034 (Fla. 5th DCA 1990) (finding sentence of twelve years’ incarceration followed by eight years’ probation to be a prohibited general sentence and in *460excess of statutory maximum where total time exceeded statutory maximum where counts involved combination of first and second-degree felonies).
In addition, the general sentence is illegal for the delivery of cannabis convictions, as it exceeds the statutory maximum. A sentence in which the incarcera-tive portion and the probationary portion, when combined, exceed the statutory maximum is an illegal sentence. Wiskusky v. State, 707 So.2d 1187 (Fla. 2d DCA 1998). The three counts of delivery of cannabis within 1000 feet of a school are second-degree felonies punishable by up to fifteen years in prison. §§ 775.082(3)(c), 893.13(1)(c)2, Fla. Stat. (2013). Accordingly, we grant the petition in part and remand for resentencing. We deny the defendant’s other claims for relief.
DENIED in part; GRANTED in part; REMANDED for resentencing.
PALMER, EVANDER, and EDWARDS,JJ., concur.
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Ciara Lucas King v. State (Fla. 5th DCA 2022)…ver, the written sentence in case number 2020-CF-000309-A is a general sentence because it renders one sentence for the entire case rather than a separate sentence on each count. See Parks v. State, 765 So. 2d 35, 35–36 (Fla. 2000); Munoz v. State, 218 So. 3d 459, 459 (Fla. 5th DCA 2017) (“The sentence on all the counts is an illegal general sentence.” (citation omitted)). We therefore reverse and remand for the trial court to correct the general sentence in case number 2020-CF-000309-A. AFFIRMED in part; RE…
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Bradford v. State (Fla. 1st DCA 2020)…ender to a term of imprisonment of twenty years for a second- degree felony and a third-degree felony. This general sentence imposed for multiple offenses is an illegal sentence. See Parks v. State, 765 So. 2d 35, 36 (Fla. 2000); Munoz v. State, 218 So. 3d 459 (Fla. 5th DCA 2017). The imposition of a twenty-year sentence on the third-degree felony is also illegal because it exceeds the maximum sentence authorized by section 775.084(4)(a), Florida Statutes (2015), for the offense. Accordingly, we grant t…
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Stevie Garner v. State (Fla. 2d DCA 2022)…s illegal and that he is entitled to distinct sentences for each individual count. The postconviction court rejected this claim and denied Garner's motion. But a general sentence covering multiple counts is an illegal sentence. See Munoz v. State, 218 So. 3d 459, 459 (Fla. 5th DCA 2017) ("The sentence on all the counts is an illegal general sentence."); Holmes v. State, 100 So. 3d 281, 283 (Fla. 3d DCA 2012) (reversing denial of claim asserting illegal sentence because "a trial court may not impose a singl…
Authorities Cited
- Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990)
- Wiskusky v. State, 707 So. 2d 1187 (Fla. 2d DCA 1998)