Baxter v. State

District Court of Appeal of Florida

Baxter v. State

15 So. 3d 879, 2009 Fla. App. LEXIS 10604, 2009 WL 2338043

CourtDistrict Court of Appeal of Florida

DecidedJuly 31, 2009

Docket5D08-3965

StatusPublished

This text of 15 So. 3d 879 (Baxter v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Baxter v. State, 15 So. 3d 879, 2009 Fla. App. LEXIS 10604, 2009 WL 2338043 (Fla. Ct. App. 2009).

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Opinion

LAWSON, J.

William Cecil Baxter appeals from the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial order in all respects except one. Baxter’s seventeen-year sentence on the charge of possession of a firearm while engaged in a criminal offense 1 appears to exceed the maximum penalty allowed by law for this charge. The offense is a second degree felony. See § 790.07(2), Fla. Stat. (2006). As such, the penalty should not exceed fifteen years. See § 775.082(3)(c), Fla. Stat. (2006). Even though Baxter signed a plea agreement indicating that he would be sentenced on this charge as if it was a first degree felony, he could not legally agree to this sentence unless the charge was somehow enhanced or reclassified to a first degree felony, which does not appear to be the case on this limited record. See, e.g., Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982).

Accordingly, we reverse that portion of the order on appeal addressing Baxter’s *880 seventeen-year sentence for a violation of section 790.07(2), Florida Statutes, and remand with directions that the trial court either resentence Baxter on this charge or attach portions of the record demonstrating how the charge was legally enhanced or reclassified to a first degree felony. In all other respects, the trial court’s order is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

GRIFFIN and ORFINGER, JJ., concur.

1

. See § 790.07(2), Fla. Stat. (2006).

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LAWSON, J.

William Cecil Baxter appeals from the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial order in all respects except one. Baxter’s seventeen-year sentence on the charge of possession of a firearm while engaged in a criminal offense 1 appears to exceed the maximum penalty allowed by law for this charge. The offense is a second degree felony. See § 790.07(2), Fla. Stat. (2006). As such, the penalty should not exceed fifteen years. See § 775.082(3)(c), Fla. Stat. (2006). Even though Baxter signed a plea agreement indicating that he would be sentenced on this charge as if it was a first degree felony, he could not legally agree to this sentence unless the charge was somehow enhanced or reclassified to a first degree felony, which does not appear to be the case on this limited record. See, e.g., Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982).

Accordingly, we reverse that portion of the order on appeal addressing Baxter’s *880 seventeen-year sentence for a violation of section 790.07(2), Florida Statutes, and remand with directions that the trial court either resentence Baxter on this charge or attach portions of the record demonstrating how the charge was legally enhanced or reclassified to a first degree felony. In all other respects, the trial court’s order is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

GRIFFIN and ORFINGER, JJ., concur.

1

. See § 790.07(2), Fla. Stat. (2006).

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15 So. 3d 879, 2009 Fla. App. LEXIS 10604, 2009 WL 2338043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-state-fladistctapp-2009.

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