75 So. 3d 330
Fla. Dist. Ct. App.2011Background
- Appellee charged with conspiracy to traffic cannabis over 25 pounds; pled to five years' probation with state waiving the three-year minimum mandatory sentence.
- Probation violated, probation reinstated six months later, then violated again in September 2009.
- Probation violation hearing held; assistant state attorney not from statewide prosecutor requested reset; trial court proceeded.
- Trial court terminated probation unsuccessfully and released appellee; no sentence imposed at that time.
- Appellee argued the court imposed an illegal sentence; the issue centers on whether a minimum mandatory sentence applied despite probation termination.
- Court held the trial court erred by not imposing the minimum mandatory three-year term and by not aligning with sentencing statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probation termination without sentence violated statute | Appellee (State) argues court failed to impose minimum mandatory sentence. | Appellant contends the court’s action complied with plea and probation terms. | Trial court erred; required minimum three-year sentence. |
| Whether 948.06(2)(b) requires sentence as originally imposed before probation | Minimum mandatory term should have been imposed originally, not waived by plea. | Waiver of minimum mandatory in plea prevents retroactive imposition. | Court must impose minimum as originally would have before probation. |
| Whether 921.0024(2) requires minimum based on scoresheet unless valid downward departure | Sentence below minimum mandatory violates scoresheet calculation absent downward departure evidence. | No valid downward departure present; thus illegal sentence. | Sentence below mandatory minimum is illegal. |
| Whether contemporaneous objection rule applies to fundamental error | Contemporaneous objection not required for fundamental illegal sentence. | Issue foregone; not necessary to resolve due to outcome. | Not necessary to reach merits given ruling on illegal sentence. |
Key Cases Cited
- Grosso v. State, 2 So.3d 362 (Fla. 4th DCA 2008) (legal standard for de novo review of sentence legality)
- Taylor v. State, 601 So.2d 540 (Fla.1992) (contemporaneous objection not required for fundamental error)
- State v. Calvert, 15 So.3d 946 (Fla. 4th DCA 2009) (fundamental errors may be challenged on direct appeal)
- State v. Strazdins, 890 So.2d 334 (Fla. 2d DCA 2004) (illegal sentences are those not within prescribed limits)
- State v. R.F., 648 So.2d 293 (Fla. 3d DCA 1995) (illegal sentence concept cited with Strazdins)
- State v. Scanes, 973 So.2d 659 (Fla. 3d DCA 2008) (execution of below-minimum sentences analyzed)