Thomas v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MILTON EARLE THOMAS,
)
)
Appellant,
)
)
v.
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)
STATE OF FLORIDA,
)
)
Appellee.
)
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Case No. 2D04-2518
Opinion filed September 2, 2005.
Appeal from the Circuit Court
for Lee County;
Edward J. Volz, Jr., Acting Circuit Judge.
James Marion Moorman, Public
Defender, and Denise O. Simpson,
Special Assistant Public Defender,
Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Dale E. Tarpley,
Assistant Attorney General, Tampa,
for Appellee.
CANADY, Judge.
Milton Earle Thomas appeals two sentences imposed on him following
revocation of his probation. Thomas argues and the State concedes that the two
sentences are illegal because they exceed the applicable statutory maximum. Thomas
earlier raised this sentencing issue by way of a Florida Rule of Criminal Procedure
3.800(b)(1) motion, but his motion was deemed denied due to the trial court's inaction.
See Fla. R. Crim. P. 3.800(b)(1)(B).
The trial court imposed concurrent sentences of seventy-two months for a
violation of section 817.563(1), Florida Statutes (2000), and a violation of section
893.13(6)(a), Florida Statutes (2002). Both sentenced offenses are third-degree
felonies, for which the statutory maximum sentence is five years. See § 775.082(3)(d),
Fla. Stat. (2000 & 2002). Under the Criminal Punishment Code, the maximum sentence
that may be imposed for an offense is the statutory maximum for that offense, unless
the lowest permissible prison sentence calculated on the offender's scoresheet exceeds
the statutory maximum. See § 921.0024(2), Fla. Stat. (2000 & 2002); Fla. R. Crim. P.
3.704(d)(25). Thomas's Criminal Punishment Code scoresheets for his offenses show
lowest permissible prison sentences at a level lower than the applicable statutory
maximum sentences.
The sentences of seventy-two months thus exceed the applicable fiveyear (sixty-month) maximum sentences permissible for these offenses under the
Criminal Punishment Code. We reverse the sentences and remand for resentencing
within the statutory maximum.
Sentences reversed; remanded for resentencing.
FULMER, C.J., and STRINGER, J., Concur.
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