Frison v. State

533 So. 2d 954 | Fla. Dist. Ct. App. | 1988

SHARP, Chief Judge.

Frison appeals his sentence of 100 years in prison which he received following his conviction for sexual battery with a deadly weapon in violation of section 794.011(3), Florida Statutes (1987). His sentencing guidelines scoresheet totalled 712 points, which corresponded to a recommended life sentence. The statutory maximum sentence for this offense was a term of imprisonment for life or a term of imprisonment not exceeding 40 years. See § 775.082(3)(a), Fla.Stat. (1987).

Appellant’s counsel opined that the sentencing error should be deemed harmless because under the guidelines, Frison might be better off with a 100 year term than with a life sentence. In view of this argument, we wonder why this appeal was taken. Illegal sentences (in excess of the statutory maximum) constitute fundamental error not subject to the curative application of harmless error. Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983); and Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981). We have no choice but to vacate the sentence and remand this cause for resen-tencing.

Sentence VACATED; cause REMANDED.

ORFINGER and COWART, JJ., concur.