SOLOMON WISE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court addressed whether a trial court committed fundamental sentencing error by imposing an 18-month probation sentence that exceeded the statutory maximum of 60 days for a second-degree misdemeanor. The Court held that such sentencing errors constitute fundamental errors correctible on direct appeal even without preservation, and quashed the district court's decision to affirm.
A sentence exceeding the statutory maximum constitutes a fundamental sentencing error that must be corrected on direct appeal during the relevant window period, even if unpreserved. However, special conditions of probation included in the written order but not orally pronounced do not constitute a fundamental error.
[1] A sentence exceeding the statutory maximum constitutes a fundamental sentencing error that can be raised on direct appeal, even if not preserved for review.
[2] Probationary terms are subject to statutory maximums.
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Join FLexlaw to unlock all legal intelligence“a sentence that exceeds the maximum sentence allowed by statute constitutes a fundamental sentencing error that can be raised on direct appeal during the window period”
Establishes that illegal sentences violating statutory maximums are fundamental errors correctible on appeal without preservation
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Join FLexlaw to unlock all legal intelligenceSolomon Wise received a sentence of 18 months' probation for a second-degree misdemeanor conviction. Under Florida law, the statutory maximum sentence…
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PER CURIAM.
We have for review Wise v. State, 739 So. 2d 1280 (Fla. 5th DCA 1999), a decision of the Fifth District Court of Appeal citing as controlling authority its opinion in Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998), approved in part, disapproved in part, 760 So. 2d 89 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So. 2d 418, 420 (Fla.1981).
In Maddox, we recently concluded that a sentence that exceeds the maximum sentence allowed by statute constitutes a fundamental sentencing error that can be raised on direct appeal during the window period.1 760 So. 2d at 101. Wise claims that his sentence of eighteen months’ probation is illegal because it exceeds the statutory maximum sentence of sixty days permitted for a second-degree misdemean-or. See §§ 322.34(2)(a), 775.082(4)(b), Fla. Stat. (1997); see also State v. Summers, 642 So. 2d 742 (Fla.1994) (stating that probationary terms are subject to a statutory maximum). The district court should have corrected this error on direct appeal even though it was not preserved for review.
In addition, Wise challenges special conditions of probation that were included in the written probation order but were not orally pronounced. In Maddox, we found that this does not constitute a fundamental error. 760 So. 2d at 104. For the reasons expressed in this opinion, we quash the decision below and remand for proceedings consistent with our opinion in Maddox.
It is so ordered.
HARDING, C.J., SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. . In Maddox, we addressed the question of whether unpreserved sentencing errors should be corrected in appeals filed in the window period between, the effective date of section 924.051, Florida Statutes (Supp. 1996), and our recent amendment to Florida Rule of Criminal Procedure 3.800(b) in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So. 2d 1015 (Fla.1999), reh’g granted, 761 So. 2d at 1025. The appeal in this case falls within the window period discussed in Maddox.
. We decline to address the other issues raised by Wise that are not the basis of our jurisdiction. See, e.g., Wood v. State, 750 So. 2d 592, 595 n. 3 (Fla.1999); McMullen v. State, 714 So. 2d 368, 373 (Fla.1998).
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Dragan Leljko Kirin v. State, 798 So. 2d 12 (Fla. 4th DCA 2001)…cing or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). Consequently, we cannot correct this sentencing error, though fundamental, because appellant did not properly preserve if for review on direct appeal.1 See Wise v. State, 767 So. 2d 1162 n. 1 (Fla.2000); Garrett v. State, 788 So. 2d 328, 330 (Fla. 4th DCA 2001). Accordingly, we affirm without prejudice to appellant’s right to file a rule 3.800(a) motion to correct sentence. AFFIRMED. STONE and WARNER, JJ., concur. . The appeal i…
Authorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Jollie v. State, 405 So. 2d 418 (Fla. 1981)
- Wood v. State, 750 So. 2d 592 (Fla. 1999)
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- Amendments TO Fla. Rules OF Crim. Procedure 3.111(e) & 3.800 & Fla. Rules OF App. Procedure 9.020(h), 791 So. 2d 525 (Fla. 2001)
- McMULLEN v. State, 714 So. 2d 368 (Fla. 1998)
- Anderson v. State, 739 So. 2d 1280 (Fla. 4th DCA 1999)