Summary
quashing district court's decision in conflict with the holding in Mays that "if the `true' recommended guidelines sentence exceeds the statutory maximum, the guidelines sentence must be imposed"
Summary of this case from Vasquez v. CrosbyOpinion
Case No. 97-00102.
Opinion filed March 27, 1998.
Appeal from the Circuit Court for Manatee County; Thomas M. Gallen and Janette Dunnigan, Judges.
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
Edward Wiskusky challenges the sentences imposed for two counts of attempted capital sexual battery. He claims the sentences are illegal because they exceed the statutory maximum for first-degree felonies. We agree and treat this appeal as a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800.
Wiskusky entered no contest pleas to two counts of attempted capital sexual battery, which are first-degree felonies.See § 777.04, Fla. Stat. (1989). He was sentenced to thirty years' imprisonment to be followed by fifteen years' probation on each count, with the sentences to run concurrently. Wiskusky's cumulative sentence on each count is forty-five years, which clearly exceeds the thirty-year statutory maximum for first-degree felonies. See Jones v. State, 664 So.2d 1116 (Fla. 4th DCA 1995).
Accordingly, we reverse Wiskusky's sentence and remand for resentencing to a term which does not exceed the maximum statutory penalty for these offenses.
FRANK, A.C.J., and FULMER, J., Concur.