ANTOINE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Smith challenged his 30-year sentence for attempted second-degree murder as illegal under Florida Rule 3.800(a). The court affirmed his first claim without discussion but reversed on his second claim, holding that the 30-year sentence exceeded both the statutory maximum of 15 years and the lowest permissible sentence on the criminal punishment code scoresheet, making it an illegal sentence despite Smith's plea agreement.
The 30-year sentence is illegal because attempted second-degree murder is a second-degree felony punishable by a maximum of 15 years, and the sentence exceeds both the statutory maximum and the lowest permissible scoresheet sentence. A defendant cannot plead to an illegal sentence, even in the context of a negotiated plea agreement.
[1] A sentence exceeding the statutory maximum for a felony is illegal.
[2] When a criminal punishment code scoresheet's lowest permissible sentence exceeds the statutory maximum, the lowest permissible sentence must be imposed.
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“Attempted second-degree murder is indeed a second-degree felony punishable by up to 15 years' imprisonment.”
Establishes the statutory maximum sentence for the offense of conviction.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of attempted second-degree murder and sentenced to 30 years imprisonment pursuant to a negotiated plea agreement. The criminal pun…
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The appellant filed a rule 3.800(a) motion raising two claims. We affirm the first claim without discussion. However, because his second claim appears to have merit, we reverse.
In his second claim, the appellant argues that his 30-year sentence for attempted second-degree murder is illegal because attempted second-degree murder is a second-degree felony punishable by a maximum of 15 years. Attempted second-degree murder is indeed a second-degree felony punishable by up to 15 years’ imprisonment. See §§ 775.084(2); 777.04(4)(c); 775.082(3)(c), Fla. Stat. (2006); McFarland v. State, 794 So.2d 763 (Fla. 1st DCA 2001). However, the record indicates that the lowest permissible sentence on the appellant’s criminal punishment code scoresheet is 337.8 months, or 28.15 years’ imprisonment. When the lowest permissible sentence on a scoresheet exceeds the statutory maximum, it is the lowest permissible sentence that must be imposed. See Ricks v. State, 36 So.3d 810 (Fla. 1st DCA 2010). The 30-year sentence thus exceeds both the statutory maximum sentence and the lowest permissible sentence on his scoresheet and therefore constitutes an illegal sentence. Although it appears from the record that the appellant agreed in a negotiated plea agreement to the 30-year sentence for the attempted second-degree murder conviction, a defendant cannot plead to an illegal sentence. See Taylor v. State, 899 So.2d 1191 (Fla. 1st DCA 2005).
We accordingly reverse and remand for the trial court to either attach the portion of the record that conclusively refutes the appellant’s claim that his 30-year sentence for attempted second-degree murder is illegal, to resentence the appellant to a legal sentence, or to allow the state to withdraw from the plea agreement. See Bruno v. State, 837 So.2d 521, 523 (Fla. 1st DCA 2003) (stating that “ ‘[w]hen a sentence is illegal, and such a sentence was the product [as here] of a negotiated plea agreement, the state has the option of either agreeing to the appellant’s resentencing, or withdrawing from the plea agreement and proceeding to trial on the original charges.”) (citing Williams v. State, 650 So.2d 1054, 1055 (Fla. 1st DCA 1995)).
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
WOLF, ROWE, and SWANSON, JJ., concur.
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Citator
Cited By
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Shelton Jackson v. State, 187 So. 3d 853 (Fla. 1st DCA 2013)…the appellant would not be entitled to automatic resentencing. Rather, the state, at its option, can agree to the resentencing [*854] or it can withdraw from the plea, placing the parties back into their pre-plea positions. See e.g., Smith v. State, 93 So. 3d 387 (Fla. 1st DCA 2012). REVERSED and REMANDED for further proceedings. CLARK, MARSTILLER, JJ„ and BOLES, W. JOEL, Associate Judge, concur.…
Authorities Cited
- Detrick Williams v. State, 650 So. 2d 1054 (Fla. 1st DCA 1995)
- Bruno v. State, 837 So. 2d 521 (Fla. 1st DCA 2003)
- Taylor v. State, 899 So. 2d 1191 (Fla. 1st DCA 2005)
- Ricks v. State, 36 So. 3d 810 (Fla. 1st DCA 2010)
- Hall v. Fla. Dep't OF Ins. & Fla. Dep't of Corr., 794 So. 2d 763 (Fla. 1st DCA 2001)