Dubalski v. State

District Court of Appeal of Florida

Dubalski v. State

801 So. 2d 1002, 2001 Fla. App. LEXIS 17844, 2001 WL 1614302

CourtDistrict Court of Appeal of Florida

DecidedDecember 19, 2001

DocketNo. 2D01-4558

StatusPublished

This text of 801 So. 2d 1002 (Dubalski 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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Dubalski v. State, 801 So. 2d 1002, 2001 Fla. App. LEXIS 17844, 2001 WL 1614302 (Fla. Ct. App. 2001).

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Opinion

BLUE, Chief Judge.

John Dubalski challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, the denial of the single claim raised in Dubalski’s motion. However, we remand to the trial court with directions to strike the twenty-five-year minimum mandatory.

Dubalski was convicted of second-degree murder with a firearm, a first-degree felony punishable by life. § 782.04(2), Fla. Stat. (1987). The trial court departed from the guidelines and sentenced Dubal-ski to life imprisonment. The written sentence indicates that Dubalski is to serve life imprisonment with no possibility of parole for twenty-five years. Under the statute in effect at the time, where a person is convicted of a capital felony and the death sentence is not imposed, the trial court must impose a sentence of life imprisonment with a twenty-five-year minimum mandatory. § 775.082(1), Fla. Stat. (1987). However, there is no statutory authority to support the imposition of a twenty-five-year minimum mandatory where a person has been convicted of a first-degree felony punishable by life. § 775.082(3)(b), Fla. Stat. (1987). Accordingly, we remand to the trial court to strike that portion of Dubalski’s sentence that states he is to have no possibility of parole for twenty-five years.

Remanded with instructions.

ALTENBERND and NORTHCUTT, JJ., concur.

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BLUE, Chief Judge.

John Dubalski challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, the denial of the single claim raised in Dubalski’s motion. However, we remand to the trial court with directions to strike the twenty-five-year minimum mandatory.

Dubalski was convicted of second-degree murder with a firearm, a first-degree felony punishable by life. § 782.04(2), Fla. Stat. (1987). The trial court departed from the guidelines and sentenced Dubal-ski to life imprisonment. The written sentence indicates that Dubalski is to serve life imprisonment with no possibility of parole for twenty-five years. Under the statute in effect at the time, where a person is convicted of a capital felony and the death sentence is not imposed, the trial court must impose a sentence of life imprisonment with a twenty-five-year minimum mandatory. § 775.082(1), Fla. Stat. (1987). However, there is no statutory authority to support the imposition of a twenty-five-year minimum mandatory where a person has been convicted of a first-degree felony punishable by life. § 775.082(3)(b), Fla. Stat. (1987). Accordingly, we remand to the trial court to strike that portion of Dubalski’s sentence that states he is to have no possibility of parole for twenty-five years.

Remanded with instructions.

ALTENBERND and NORTHCUTT, JJ., concur.

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Bluebook (online)

801 So. 2d 1002, 2001 Fla. App. LEXIS 17844, 2001 WL 1614302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubalski-v-state-fladistctapp-2001.