Montgomery 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 ROBERT MONTGOMERY, Appellant, v. STATE OF FLORIDA, Appellee. ) ) ) ) ) ) ) ) ) ) Case No. 2D11-3783 Opinion filed May 17, 2013. Appeal from the Circuit Court for Sarasota County; Donna Padar Berlin, Judge. Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. In conducting its record review following Anders1 briefing, this court agrees that a sentencing error occurred. After supplemental briefing, the State rightly concedes the error. Specifically, Montgomery pleaded no contest to both counts of the 1 Anders v. California, 386 U.S. 738 (1967). information: (1) a violation of section 827.04(3), Florida Statutes (2009), a third-degree felony; and (2) a violation of section 800.04(4)(a), Florida Statutes (2009), a seconddegree felony. Because Montgomery was sentenced to 120 months in prison concurrent on both counts, his sentence on Count 1 exceeded both the statutory maximum for a third-degree felony and the minimum sentence indicated in Montgomery's Criminal Punishment Code scoresheet. See § 775.082(3)(d), Fla. Stat. (2009); Butler v. State, 838 So. 2d 554, 556 (Fla. 2003). We affirm without comment both convictions, as well as the sentence on Count 2. But we must vacate the sentence on Count 1 and remand for resentencing on that count only. Affirmed in part; sentence vacated on Count 1; remanded for further proceedings consistent with this opinion. DAVIS and SLEET, JJ., Concur. -2-

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