RAYL KELLAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Kellar appeals the denial of his motion to correct illegal sentence following conviction for armed kidnapping, armed sexual battery, and attempted first-degree murder. The court holds that two of the three sentences violate statutory maximums for life felonies and reverses those sentences for resentencing while affirming the remainder.
The sentences for armed kidnapping and armed sexual battery are illegal because their combined duration of 45 years exceeds the statutory maximum of 40 years for life felonies. The sentences must be reversed and the case remanded for resentencing. The denial of the second and third claims for relief is affirmed.
[1] A sentence imposed on a life felony, comprised of a term of incarceration followed by a term of probation, cannot exceed the statutory maximum of forty years.
[2] When a court opts for a term of years instead of a life sentence for a life felony committed after October 1, 1983, it may not impose a sentence longer than forty years.
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Join FLexlaw to unlock all legal intelligence“Armed kidnapping and armed sexual battery are both life felonies, punishable by life imprisonment or a term of imprisonment not to exceed forty years.”
Establishes the statutory maximum penalty for the offenses at issue
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial, Kellar was convicted and sentenced to: 25 years in prison followed by 20 years on probation for armed kidnapping (45 years tot…
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MICKLE, Judge.
Appellant appeals the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm in part and reverse in part.
Following a jury trial, appellant was convicted and sentenced as follows: 25 years in prison followed by 20 years on probation for armed kidnapping, 25 years in prison followed by 20 years on probation for armed sexual battery, and 25 years in prison with a three-year mandatory minimum for attempted first-degree murder with a firearm.
As his first claim for relief, appellant asserts that the sentences imposed on the armed kidnapping and armed sexual battery convictions exceed the 40-year maximum term allowable by statute. We agree. Armed kidnapping and armed sexual battery are both life felonies, punishable by life imprisonment or a term of imprisonment not to exceed forty years. §§ 787.01(2), 794.011(3), 775.087(l)(a), 775.082(3)(a), Fla. Stat. (1993). When a court opts for a term of years instead of a life sentence for a life felony committed after October 1, 1983, it may not impose a sentence longer than forty years. See State v. Marsh, 642 So. 2d 120 (Fla. 2d DCA 1994). A sentence imposed on a life felony, comprised of a term of incarceration followed by a term of probation, cannot exceed the statutory maximum of forty years. See Munro v. State, 662 So. 2d 1345 (Fla. 2d DCA 1995). Herein, the total duration of each sentence is 45 years. As such, both sentences exceed the statutory maximum. See Sumner v. State, 658 So. 2d 111 (Fla. 2d DCA 1995)(re-versing life felony sentence of 22 years in prison followed by 25 years of probation). Accordingly, we reverse the sentences imposed on these two counts and remand for resentencing.
We affirm, without discussion, the denial of appellant’s second and third claims for relief.
AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.
LAWRENCE and DAVIS, JJ., concur.
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Walling v. State, 105 So. 3d 660 (Fla. 1st DCA 2013)…judge may choose to make written findings to substantiate a sentence of life without parole. If a life without parole sentence is not justified, then the judge may sentence the offender to any period of years up to forty years. See Kellar v. State, 712 So. 2d 1133 (Fla. 1st DCA 1998).…
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Spring v. State, 795 So. 2d 266 (Fla. 1st DCA 2001)…fifty years incarceration on at least two of the life felonies of which he was convicted. “When a court opts for a term of years instead of a life sentence for a life felony ... it may not impose a sentence longer than forty years.” Kellar v. State, 712 So. 2d 1133, 1133 (Fla. 1st DCA 1998). Further, Appellant alleges that he was sentenced to the statutory máximums on a third degree felony and a second degree felony, and that additional terms of probation were added on to the sentences of incarceration, resu…
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Ryan v. State (Fla. 2d DCA 2022)…nt for life or by a term of imprisonment not exceeding 40 years." § 775.082(3)(a). Therefore, "[w]hen a court opt[ed] for a term of years instead of a life sentence . . . it [could] not impose a sentence longer than forty years." Kellar v. State, 712 So. 2d 1133, 1133 (Fla. 1st DCA 1998). Accordingly, the fifty-year sentence for armed kidnapping is illegal. See Griffin v. State, 934 So. 2d 614, 615 (Fla. 4th DCA 2006). Similarly, Ryan's sentence in case number 94-CF-1189 for armed sexual battery is illega…
Authorities Cited
- Allen v. State, 642 So. 2d 120 (Fla. 1st DCA 1994)
- Basil Alan Munro v. State, 662 So. 2d 1345 (Fla. 2d DCA 1995)
- Sumner v. State, 658 So. 2d 111 (Fla. 2d DCA 1995)