KIP STERLING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentences for attempted first-degree murder, reclassified as life felonies due to firearm use, exceeded the statutory maximum of 40 years. The sentences for armed robbery, however, were permissible.
Appellant was convicted of armed robberies and attempted first-degree murder, receiving concurrent sentences of 45 years plus probation. He appealed, …
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PER CURIAM.
Appellant Kip Sterling was convicted of numerous armed robberies and two counts of attempted first degree murder. For each offense appellant received a concurrent sentence of 45 years in prison followed by 30 years probation. He now argues that the sentences exceed the statutory maximum.
With respect to the two counts of attempted murder, we agree with appellant. Ordinarily this offense would be a felony of the first degree, punishable by a maximum sentence of 30 years. See §§ 775.082(3)(b), 777.04(4)(a), Fla.Stat. (1989). However, because appellant used a firearm in the commission of the offense, it is reclassified as a life felony. Section 775.087(l)(a), Fla.Stat. (1989).1 For a life felony committed after October 1,1983, the court may impose a penalty of life in prison or “a term of imprisonment not exceeding 40 years.” Thus a total sanction of 75 years is unlawful and must be reduced. See Committee Note, Fla.R.Crim.P. 3.701(d)(12); Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988).
The remaining offenses are also designated as felonies of the first degree. However, subsection 775.082(3)(b) also authorizes “a term of years not exceeding life imprisonment” where specifically provided for by statute. Armed robbery is one such specially designated offense. Section 812.-13(2)(a), Fla.Stat. (1989). By virtue of a statutory anomaly, no comparable limitation is placed on the term of years that may be imposed. Dunn v. State, 522 So. 2d 41 (Fla. 5th DCA 1988). The robbery sentences as they presently exist are therefore legal.
Affirmed in part, reversed in part, and remanded for partial resentencing in accordance with this opinion.
LEHAN, A.C.J., and THREADGILL and ALTENBERND, JJ., concur. . The state points out that the judgment filed in this case erroneously designates appellant’s attempted murder convictions as first degree felonies punishable by life. This erroneous entry should be corrected after remand.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (18 total)
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Stephens v. State, 627 So. 2d 543 (Fla. 2d DCA 1993)…t for life or a term of imprisonment not exceeding 40 years. Section 775.082(3)(a), Fla. Stat. (1987). When the trial court opts for a term of years instead of a life sentence, it may not impose a sentence longer than forty years. Sterling v. State, 584 So. 2d 626 (Fla. 2d DCA 1991), rev. denied, 592 So. 2d 682 (Fla.1991); Greenhalgh v. State, 582 So. 2d at 108. Moreover, the total duration of a split sentence must fall within the statutory maximum. Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993). Thus, th…
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Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993)…awfully excessive. Such crimes are punishable by “a term of years not exceeding life imprisonment.” § 775.-082(3)(b), Fla.Stat. (1991). Unlike those which may be imposed for life felonies, such “terms” are not limited to 40 years. Sterling v. State, 584 So. 2d 626 (Fla. 2d DCA), rev. denied, 592 So. 2d 682 (Fla.1991). We affirm the denial of postconviction relief as to these sentences. A final argument concerns an alleged error in Wilson’s guideline score-sheet. As to this the circuit court found, and we agr…
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Mills v. State, 642 So. 2d 15 (Fla. 4th DCA 1994)…in numerous other cases. See Green v. State, 630 So. 2d 1193 (Fla. 1st DCA 1994); Crabtree v. State, 624 So. 2d 743 (Fla. 5th DCA 1993), rev. denied, 634 So. 2d 623 (Fla. 1994); Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993); Sterling v. State, 584 So. 2d 626 (Fla. 2d DCA), rev. denied, 592 So. 2d 682 (Fla.1991); Dunn v. State, 522 So. 2d 41 (Fla. 5th DCA 1988). It should be noted, as was done in Crabtree, that the defendant has raised no constitutional attack on the statutory scheme as being irrational.…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dunn v. State, 522 So. 2d 41 (Fla. 5th DCA 1988)
- Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988)