MELLIE D. BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that imposing indeterminate sentences for misdemeanor convictions is fundamental error because the relevant statute limits such sentences to noncapital felonies.
Appellant received indeterminate sentences for three misdemeanor convictions. The appeal challenges the legality of these sentences.…
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COWART, Judge.
Appellant’s only meritorious issue on appeal is her argument that the trial court erred in imposing indeterminate sentences for appellant’s three misdemeanor convictions. We reverse.
The power to prescribe the penalty to be imposed for commission of a crime rests with the legislature, not with the courts. Dorminey v. State, 314 So. 2d 134 (Fla.1975); Brown v. State, 152 Fla. 853, 13 So. 2d 458 (1943). Consequently, a defendant’s sentence must be authorized by statute; without a statute allowing such punishment, the sentence is unauthorized. See, e.g., Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974) (sentence “at hard labor” was unauthorized after repeal of § 922.05(2)).
Section 921.18, Florida Statutes (1979), authorizing indeterminate sentences, is limited in application to noncapital felonies. The imposition of an indeterminate sentence upon a misdemeanor conviction constitutes fundamental error because this type of sentence is not authorized by any statutory authority to be imposed as punishment for a misdemeanor. As fundamental error, such an unauthorized sentence is reviewable by appeal without a showing of harm and without being first raised in the trial court.
Accordingly, the conviction and sentence as to count 1 (grand theft) is affirmed. The misdemeanor convictions (petit theft in count 2, battery in count 3 and battery in count 4) are affirmed, but the indeterminate sentences as to those misdemeanors are hereby vacated and those counts are remanded for resentencing. The appellant must be present at such resentencing, Fla. R.Crim.P. 3.180(a)(9), 3.720, unless appellant’s request to be excused from attendance is approved by the court. Fla.R. Crim.P. 3.180(c).
AFFIRMED IN PART; SENTENCES VACATED AND REMANDED FOR RE-SENTENCING.
DAUKSCH, C. J., and COBB, J., concur.
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Citator
Cited By
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Ellison v. State, 593 So. 2d 1205 (Fla. 5th DCA 1992)…24, 1991. It was fundamental error to resentence appellant in his absence. This is true even though he received the exact same sentence and counsel was present at the hearing. See Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983); Butler v. State, 412 So. 2d 917 (Fla. 5th DCA 1982); McCrae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981). Appellant’s case remained in the “pipeline” until a lawful re-sentencing occurred. Love v. State, 559 So. 2d 198 (Fla.1990). Clearly, the departure sentence of January 8, 1990…
Authorities Cited
- Brown v. State, 152 Fla. 853 (Fla. 1943)
- Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974)
- State v. McHANEY, 314 So. 2d 134 (Fla. 1975)