Gremmels v. State

District Court of Appeal of Florida

Gremmels v. State

858 So. 2d 1167, 2003 Fla. App. LEXIS 16967, 2003 WL 22514889

CourtDistrict Court of Appeal of Florida

DecidedNovember 7, 2003

DocketNo. 2D02-4673

StatusPublished

This text of 858 So. 2d 1167 (Gremmels 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.

Bluebook

Gremmels v. State, 858 So. 2d 1167, 2003 Fla. App. LEXIS 16967, 2003 WL 22514889 (Fla. Ct. App. 2003).

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Opinion

VILLANTI, Judge.

Following his conviction for resisting arrest with violence, a third-degree felony, see § 843.01, Fla. Stat. (2001), Dennis Dale Gremmels was sentenced to one year in county jail followed by five years’ probation. As the State properly concedes, because the combined sentence exceeds the five-year statutory maximum, the sentence was illegal. See § 775.082, Fla. Stat. (2001); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Baker v. State, 652 So.2d 431 (Fla. 2d DCA 1995). However, the State argues that this court need only remand with directions for the trial court to impose [1168]*1168a Villery sentence, as the trial court’s intent was to make the county jail sentence a special condition of the five years’ probation. See Villery v. Fla. Parole & Prob. Comm’n, 396 So.2d 1107 (Fla.1980). We decline to do so for two reasons.

First, the trial court declined the opportunity to impose a Villery sentence when Gremmels filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B). Second, the record is clear that the trial court intended to impose the exact illegal sentence being appealed. We are not free to order a specific corrected sentence that is inconsistent with the trial court’s intent simply because the corrected sentence would be legal. Cf. Jackson v. State, 615 So.2d 850, 851 (Fla. 2d DCA 1993) (ordering correction of orally pronounced sentence to comport with intent, clearly established in record, of trial court and counsel for the State and defendant). We therefore reverse and remand for imposition of a lawful sentence.

Reversed and remanded.

SALCINES and DAVIS, JJ., concur.

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VILLANTI, Judge.

Following his conviction for resisting arrest with violence, a third-degree felony, see § 843.01, Fla. Stat. (2001), Dennis Dale Gremmels was sentenced to one year in county jail followed by five years’ probation. As the State properly concedes, because the combined sentence exceeds the five-year statutory maximum, the sentence was illegal. See § 775.082, Fla. Stat. (2001); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Baker v. State, 652 So.2d 431 (Fla. 2d DCA 1995). However, the State argues that this court need only remand with directions for the trial court to impose [1168]*1168a Villery sentence, as the trial court’s intent was to make the county jail sentence a special condition of the five years’ probation. See Villery v. Fla. Parole & Prob. Comm’n, 396 So.2d 1107 (Fla.1980). We decline to do so for two reasons.

First, the trial court declined the opportunity to impose a Villery sentence when Gremmels filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B). Second, the record is clear that the trial court intended to impose the exact illegal sentence being appealed. We are not free to order a specific corrected sentence that is inconsistent with the trial court’s intent simply because the corrected sentence would be legal. Cf. Jackson v. State, 615 So.2d 850, 851 (Fla. 2d DCA 1993) (ordering correction of orally pronounced sentence to comport with intent, clearly established in record, of trial court and counsel for the State and defendant). We therefore reverse and remand for imposition of a lawful sentence.

Reversed and remanded.

SALCINES and DAVIS, JJ., concur.

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858 So. 2d 1167, 2003 Fla. App. LEXIS 16967, 2003 WL 22514889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gremmels-v-state-fladistctapp-2003.

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