JAMES BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial judge committed fundamental error by exceeding the statutory maximum sentence for aggravated assault, requiring correction despite not being raised below.
Appellant was convicted by a jury on four counts, including aggravated assault. The trial court imposed sentences, including a fifteen-year sentence f…
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PER CURIAM.
Appellant, James Butler, was charged in a four-count information as follows: conspiracy to commit robbery, Count One; aggravated assault, Count Two; robbery, Count Three; and unlawful possession of a firearm while engaged in a criminal transaction, Count Four. A jury found him guilty as to all counts of the information. The court sentenced him to consecutive prison terms of fifteen (15) years, fifteen (15) years, and ninety-nine (99) years on Counts One, Two and Three, respectively; as to Count Four, he was sentenced to fifteen (15) years to run concurrently with the sentence imposed as to Count Three. This appeal is from the judgment and sentences.
We have carefully considered the record on appeal, briefs and arguments of counsel and are of the opinion that the judgment appealed is substantially free of error and should be affirmed. We note, however, that aggravated assault, Section 784.021, Florida Statutes (1975) is a felony of the third degree carrying a sentence not exceeding five (5) years. Section 775.082, Florida Statutes (1975).
In exceeding the maximum sentence allowed for that particular crime, we believe the trial judge committed fundamental error which should be corrected, notwithstanding the failure of appellant to raise the illegality of his sentence in the trial court. Williams v. State, 280 So. 2d 518 (Fla.3d DCA 1973).
As pertains to Count Two, aggravated assault, the sentence imposed is reversed and remanded with directions to re-sentence appellant in accordance with the applicable statutory limitations. In all other respects, the judgment and sentences are affirmed.
Affirmed in part; reversed and remanded in part.
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Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)…, Gonzalez, sentenced in early 1979, is entitled to have this excessive incarceration condition invalidated,1 notwithstanding that she failed to object in the trial court to its imposition. Noble v. State, 353 So. 2d 819 (Fla.1977); Butler v. State, 343 So. 2d 93 (Fla. 3d DCA 1977). The. State agrees. It urges, however, that if a defendant is to be relieved of an illegal sentence, relief should come from the trial court, upon a motion under Rule 3.850, Florida Rules of Criminal Procedure.2 The State relies…1 / 2
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Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979)…erm of imprisonment in excess of the statutory maximum set for the crime for which the defendant stands convicted. Such an error is fundamental and jurisdictional in nature and can > never be considered irrelevant, moot or harmless. Butler v. State, 343 So. 2d 93 (Fla.3d DCA 1977); Williams v. State, 280 So. 2d 518 (Fla.3d DCA 1973). The order under review is reversed and the cause remanded to the trial court with directions to vacate the sentence of life imprisonment imposed upon the defendant for the crim…
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Leone v. State, 590 So. 2d 29 (Fla. 5th DCA 1991)…he trial court. However, imposition of a sentence in excess of the statutory maximum for the crime charged is fundamental error which can be raised for the first time on appeal. Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984); Butler v. State, 343 So. 2d 93 (Fla. 3d DCA 1977).…
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- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)