UCAL HOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a split sentence of incarceration and probation cannot exceed the maximum period of incarceration provided by law.
Ucal Howe was found guilty of attempted second-degree murder with a firearm and sentenced to twenty-two years imprisonment followed by twenty years pr…
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PARKER, Judge.
Ucal Howe appeals his sentence imposed after a jury found him guilty of attempted second-degree murder with a firearm. The trial court adjudicated Howe guilty and sentenced him to twenty-two years’ imprisonment with a minimum mandatory of three years, to be followed by twenty years’ probation. Howe argues that this sentence is illegal. We agree and reverse, concluding that the split sentence exceeds the maximum period of incarceration provided by law.
Murder in the second degree is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. See § 782.04(2), Fla.Stat. (1989). Since Howe’s offense was attempted murder in the second degree, the punishment is reduced to a felony of the second degree. See § 777.04(4)(b), Fla.Stat. (1989). Howe’s use of a firearm in the commission of the attempted offense reclassifies the offense to a felony of the first degree. See § 775.-087(1)(b), Fla.Stat. (1989). The maximum sentence for this crime is thirty years’ imprisonment. § 775.082(3), Fla.Stat. (1989). See Dion v. State, 409 So. 2d 1216 (Fla. 3d DCA 1982). See also Miller v. State, 460 So. 2d 373 (Fla.1984).
The sentence consisting of incarceration and probation cannot exceed the maximum period of incarceration provided by law. Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991). Thus Howe’s forty-two-year split sentence is illegal. Howe did not waive this error by failing to object below. See Forshee v. State, 579 So. 2d 388 (Fla. 2d DCA 1991).
Reversed and remanded for the trial court to impose a sentence which does not exceed the limits set forth in section 775.-082(3), Florida Statutes (1989).
CAMPBELL, A.C.J., and McDONALD, RANDALL G., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Bennie Lee Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992)…we conclude that once the trial court determined defendant should be sentenced to a term of years, forty years was the maximum term of years permitted under the statute. See Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990); see also Howe v. State, 596 So. 2d 1227 (Fla. 2d DCA 1992). Also, the fifteen-year mandatory minimum cannot be imposed because, as stated in Lamont, subsections 775.084(4)(a) and (b) do not apply to life felonies. Lamont, 597 So. 2d at 829. As to the remaining points raised, first, the t…
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State v. Australia Ozell Rinkins, Jr., 634 So. 2d 763 (Fla. 1st DCA 1994)…a felony of the first degree pursuant to section 775.087(l)(b), Florida Statutes (Supp.1990), carrying a maximum sentence of 30 years’ imprisonment under the generic statutory sentencing provisions. § 775.082(3)(b), Fla. Stat. (1989); Howe v. State, 596 So. 2d 1227 (Fla. 2d DCA 1992). Section 775.087(2)(a), Florida Statutes (Supp.1990), imposes a three-year minimum mandatory prison sentence where, as here, a firearm is used in the attempted offense. In the ease sub judice, the state filed a notice of intent t…
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Harris v. State, 650 So. 2d 639 (Fla. 4th DCA 1995)…with a deadly weapon. The use of the weapon was part of the crime. We cannot tell from the opinions on which the state relies whether the specific argument which the defendant advances was made in those eases. However, the courts in Howe v. State, 596 So. 2d 1227 (Fla.2d DCA 1992), and Montoya v. State, 489 So. 2d 794 (Fla.3d DCA 1986), did use the method of calculation used by the trial court here. This conviction was properly scored as a first degree felony. Defendant also argues that the trial court erro…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. State, 460 So. 2d 373 (Fla. 1984)
- Chambliss v. State, 579 So. 2d 388 (Fla. 2d DCA 1991)
- Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991)
- Dion v. State, 409 So. 2d 1216 (Fla. 3d DCA 1982)