RAYNARD WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this Anders appeal, the Florida First District Court of Appeal affirmed Wilson's conviction for attempted second-degree murder but identified a sentencing error: the trial court imposed a 45-year sentence exceeding the 30-year statutory maximum for this crime when committed with a firearm. Because the sentencing error was not preserved by objection at trial, the court affirmed without prejudice to Wilson's right to seek post-conviction relief.
The trial court imposed an illegal sentence exceeding the 30-year maximum allowed for attempted second-degree murder committed with a firearm. However, because this sentencing error was not preserved by objection at sentencing or by motion to correct illegal sentence, the conviction must be affirmed, though without prejudice to Wilson seeking post-conviction relief.
[1] Attempted second-degree murder, when committed with a firearm, is a first-degree felony subject to a maximum sentence of 30 years.
[2] A sentence exceeding the statutory maximum for a felony is subject to correction.
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“Notwithstanding the minimum mandatory term, the maximum sentence the trial court properly may impose is a sentence of 30 years.”
Establishes the legal maximum sentence applicable to attempted second-degree murder with a firearm despite the mandatory minimum.
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Join FLexlaw to unlock all legal intelligenceWilson was convicted by jury of attempted second-degree murder. The trial court sentenced him to 45 years with a 25-year minimum mandatory sentence un…
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PER CURIAM.
In this Anders appeal,1 appellant’s appointed appellate counsel represented to this court that counsel could not, in good faith, argue that reversible error occurred in the lower tribunal. Pursuant to the constitutional mandate of Anders and the instruction of the Florida Supreme Court in State v. Causey, 503 So. 2d 321 (Fla.1987), we thereafter undertook an independent review of the record. Although we affirm the conviction, our review uncovered a sentencing error, which was not preserved by objection at sentencing or by motion to correct sentence.
After the jury returned a verdict of guilty for attempted second-degree murder, the trial court imposed a 45-year sentence, with a 25-year minimum mandatory sentence pursuant to section 775.087(2)(a)3, Florida Statutes (2003). Second-degree murder is a first-degree felony. See § 782.04(2), Fla. Stat. (2003). If the criminal offense attempted is a first-degree felony, the offense of criminal attempt is a second-degree felony. See § 777.04(4)(e), Fla. Stat. (2003). Attempted second-degree murder is thus a second-degree felony punishable by a maximum sentence of 15 years. If, as in the instant case, the offense is committed with a firearm, the crime is re-classified to a first-degree felony pursuant to section 775.087(l)(b), subject to an enhanced sentence not to exceed 30 years. See Miller v. State, 460 So. 2d 373, 374 (Fla.1984); Henry v. State, 857 So. 2d 344, 345 (Fla. 2d DCA 2003) (attempted second-degree murder is a second-degree felony, properly reclassified as a first-degree felony based on use of a weapon); Badia v. State, 770 So. 2d 300 (Fla. 3d DCA 2000); Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997); Harris v. State, 660 So. 2d 409, 410 (Fla. 4th DCA 1995); Maynoldi v. State, 456 So. 2d 587, 588 (Fla. 3d DCA 1984). Where the sentence imposed exceeds the 30-year maximum sentence for a first-degree felony, as outlined in section 775.082(3)(b), Florida Statutes (2003), it is subject to correction in a rule 3.800(a) proceeding. Goutier, 692 So. 2d at 979. See also Badia, 770 So. 2d at 300 (court reversed a 40-year sentence for attempted second-degree murder and remanded for re-sentencing).
Appellant is subject to a mandatory minimum sentence of 25 years pursuant to section 775.087(2)(a)3, Florida Statutes (2003), for discharge of a firearm resulting in death or great bodily harm. Notwithstanding the minimum mandatory term, the maximum sentence the trial court [*193-195] properly may impose is a sentence of 30 years.
The sentencing error is fundamental, but it was not preserved by objection at sentencing or by filing a motion to correct illegal sentence. In A.F.E. v. State, 853 So. 2d 1091 (Fla. 1st DCA 2003), this court confronted a similar situation in the context of an Anders appeal. That is, the record demonstrated an unpreserved, but patent sentencing error. The A.F.E. panel agreed with the decision and analysis of the fifth district in Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA), remeto dismissed, 831 So. 2d 675 (Fla.2002), and concluded the court was constrained to affirm, because the sentencing issue had not been preserved and is not cognizable on appeal. See A.F.E., 853 So. 2d at 1095.
Accordingly, we affirm this cause without prejudice to appellant to seek appropriate post-conviction relief. See A.F.E., 853 So. 2d at 1093; Washington, 814 So. 2d at 1190.
ERVIN, BARFIELD and KAHN, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Mendenhall v. State, 48 So. 3d 740 (Fla. 2010)…65 (Fla. 5th DCA 2008), on the ground that it expressly and directly conflicts with the decisions of the Second District Court of Appeal in Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008), and the First District Court of Appeal in Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005).1 This case concerns section 775.087, Florida Statutes (2004) — commonly known as the “10-20-Life” statute — specifically section 775.087(2)(a)(3), which provides that defendants who discharge a firearm during the commission of…1 / 4
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A.L.B. v. State, 23 So. 3d 190 (Fla. 1st DCA 2009)…ite error because appellant failed to preserve the issue for review on direct appeal). We certify the same questions in the present case. Today’s affirmance is without prejudice to appellant’s right to seek relief collaterally, see Wilson v. State, 898 So. 2d 191, 193 (Fla. 1st DCA 2005); Colon, 869 So. 2d at 1290, although such relief may be of little practical use to appellant. See A.F.E., 853 So. 2d at 1093 (“That a party may seek collateral relief ... is of little practical assistance in juvenile cases,…
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Dunbar v. State, 35 So. 3d 54 (Fla. 5th DCA 2010)…tate, 760 So. 2d 89 (Fla.2000); Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002). Accordingly, we affirm Dunbar’s convictions and sentences without prejudice to his right to seek appropriate and timely postconviction relief. Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005); Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002). AFFIRMED. ORFINGER, TORPY and EVANDER, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . The trial court also imposed the mandator…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Miller v. State, 460 So. 2d 373 (Fla. 1984)
- Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002)
- Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997)
- Fraley v. State, 853 So. 2d 1091 (Fla. 3d DCA 2003)
- Badia v. State, 770 So. 2d 300 (Fla. 3d DCA 2000)
- Maynoldi v. State, 456 So. 2d 587 (Fla. 3d DCA 1984)
- Harris v. State, 660 So. 2d 409 (Fla. 4th DCA 1995)
- Henry v. State, 857 So. 2d 344 (Fla. 2d DCA 2003)