Montgomery v. State

112 So. 3d 781, 2013 WL 2121750, 2013 Fla. App. LEXIS 7964

• Court: District Court of Appeal of Florida
• Decided: May 17, 2013
• Docket: No. 2D11-3783
• Status: Published

Opinion

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 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 second-degree 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 score-sheet. 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.

1 . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).