DINO LEWIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Dino Lewis appealed a trial court order denying his motion to correct an illegal sentence for armed robbery. The court affirmed the order but held that the three-year mandatory minimum sentence was illegal because Lewis did not possess the firearm used in the robbery, and remanded for the trial court to consider vacating the entire plea agreement or allowing resentencing without the illegal mandatory minimum.
The mandatory minimum sentence was illegal because Lewis did not possess the firearm. The appropriate remedy depends on whether the state consents to the plea agreement without the illegal minimum: if the state consents, only the sentence is vacated and Lewis is resentenced without the mandatory minimum; if the state does not consent, the entire plea agreement must be set aside, the conviction and sentence vacated, and a not guilty plea reinstated.
[1] A mandatory minimum sentence for armed robbery is illegal if the factual basis for the plea shows the defendant did not possess a firearm.
[2] When an illegal sentence is a vital part of a plea negotiation agreement, the appropriate remedy is to set aside the entire plea agreement.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The three-year mandatory minimum sentence imposed upon the defendant for armed robbery pursuant to Section 775.-087(2), Florida Statutes (1989), was illegal because the factual basis for the nolo contender e plea made at the time of the plea clearly shows, without dispute, that the defendant did not possess, either actually or constructively, the firearm which was used in the robbery”
Establishes the illegality of the mandatory minimum sentence based on the factual record supporting the plea
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLewis entered a nolo contendere plea to armed robbery charges. He received a three-year mandatory minimum sentence under Florida Statutes § 775.087(2)…
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PER CURIAM.
This is an appeal by the defendant Dino Lewis from a trial court order denying the defendant’s motion to correct an illegal sentence under Fla.R.Crim.P. 3.800(a). We affirm the order under review, without prejudice to the defendant to file a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 in the trial court, based on the following holdings. (1) The three-year mandatory minimum sentence imposed upon the defendant for armed robbery pursuant to Section 775.-087(2), Florida Statutes (1989), was illegal because the factual basis for the nolo contender e plea made at the time of the plea clearly shows, without dispute, that the defendant did not possess, either actually or constructively, the firearm which was used in the robbery, Whitehead v. State, 446 So. 2d 194, 197 (Fla. 4th DCA 1984), rev. denied, 462 So. 2d 1108 (Fla.1985); Reynolds v. State, 429 So. 2d 1331, 1333 (Fla. 5th DCA 1983); Lawson v. State, 400 So. 2d 1053, 1055 (Fla. 2d DCA 1981). (2) The three-year mandatory minimum sentence was, nonetheless, a vital part of a plea negotiation agreement entered into at trial between the defendant and the state. (3) Accordingly, the appropriate remedy for this illegal sentence is for the entire plea agreement to be set aside as having been based on an illegal term, the conviction and sentence for the two charged armed robberies vacated under Fla.R.Crim.P. 3.850, and the defendant’s not guilty plea reinstated [rather than the illegal portion of the plea agreement stricken as requested by the defendant under Fla.R.Crim.P. 3.800(a)], because the removal of this crucial term in the plea agreement vitiates the state’s consent to the remaining terms of the agreement. This is the appropriate result unless, of course, the state, at its option, consents to the original plea agreement without the three-year mandatory minimum sentence; in that event, only the sentence should be vacated under Fla.R.Crim.P. 3.850 and the defendant should then be resentenced to the originally imposed sentence, but without the illegal three-year mandatory minimum sentence. See Ford v. State, 595 So. 2d 266 (Fla. 5th DCA 1992); Ruiz v. State, 537 So. 2d 682 (Fla. 3d DCA 1989); Daniels v. Smith, 478 So. 2d 110, 111 (Fla. 2d DCA 1985).
Affirmed as modified.
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Citator
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Young v. State, 616 So. 2d 1133 (Fla. 3d DCA 1993)…basis for imposition of the three-year mandatory minimum term. We agree with the trial court that defendant’s allegations did not set forth a proper claim that there was an illegal sentence as that term is used in Rule 3.800(a). See Lewis v. State, 615 So. 2d 259 (Fla. 3d DCA 1993). [*1134] In the present case defendant pled nolo contendere to armed robbery with a firearm and attempted armed robbery with a firearm. The nine-year term and three-year mandatory minimum sentence are legally authorized for those…1 / 2
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Rodriguez v. State, 683 So. 2d 183 (Fla. 3d DCA 1996)…mum sentence should not have been imposed as the plea colloquy affirmatively demonstrates that he was not in actual or constructive possession of the firearm used in the armed robbery to which he pled. If he were correct, pursuant to Lewis v. State, 615 So. 2d 259 (Fla. 3d DCA 1993), the sentence would be unauthorized. It is true, as pointed out by Rodriguez, that the trial judge stated at one point that one of Rodriguez’ accomplices, and not Rodriguez, had been in possession of the weapon used in the armed r…
Authorities Cited
- Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)
- Reynolds v. State, 429 So. 2d 1331 (Fla. 5th DCA 1983)
- R.S. v. State, 537 So. 2d 682 (Fla. 3d DCA 1989)
- Lawson v. State, 400 So. 2d 1053 (Fla. 2d DCA 1981)
- Daniels v. Honorable Gilbert A. Smith, 478 So. 2d 110 (Fla. 2d DCA 1985)
- Ford v. State, 595 So. 2d 266 (Fla. 5th DCA 1992)