RUSSELL RIOUX v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: June 28, 2019
• Docket: 17-4042
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

RUSSELL RIOUX, ) ) Appellant, ) ) v. ) Case No. 2D17-4042 ) STATE OF FLORIDA, ) ) Appellee. ) ________________________________ )

Opinion filed June 28, 2019.

Appeal from the Circuit Court for Polk County; James A. Yancey, Judge.

Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Following a second resentencing proceeding, the trial court sentenced

Russell Rioux to twenty-three years' imprisonment to be followed by life probation for

each of six counts: four counts of sexual battery on a person less than twelve by a

person less than eighteen (counts one through four) and two counts of lewd or

lascivious molestation on a person less than twelve by a person less than eighteen (counts five and six). Rioux then initiated this appeal. During the pendency of the

appeal, Rioux filed a motion to correct sentencing errors under Florida Rule of Criminal

Procedure 3.800(b)(2), alleging, among other things, that the sentences on counts five

and six exceeded the statutory maximum of fifteen years' imprisonment. The trial court

granted that motion and, in relevant part, reduced the sentences for counts five and six

to fifteen years' imprisonment. However, the amended sentencing document still

included the life probationary terms for those offenses. Rioux therefore filed another

rule 3.800(b)(2) motion, alleging that the aggregate length of his split sentences still

exceeded the statutory maximum. The trial court failed to rule on that second motion

within the sixty days provided by rule, resulting in its being deemed denied. See Fla. R.

Crim. P. 3.800(b)(2)(B).

The State correctly acknowledges that the sentences for counts five and

six remain illegal. Counts five and six are both second-degree felonies that are

punishable by a maximum of fifteen years' imprisonment. See §§ 800.04(5)(c)(1),

775.082(3)(c), Fla. Stat. (2007). And "[t]he law is clear that when a defendant is

sentenced to a split sentence consisting of incarceration and probation, as provided by

statute, the combined sanction cannot exceed the maximum period of incarceration

provided by law." Smith v. State, 584 So. 2d 154, 154 (Fla. 2d DCA 1991) (citing State

v. Holmes, 360 So. 2d 380, 383 (Fla. 1978)). The sentences imposed on counts five

and six of fifteen years' imprisonment to be followed by life probation are therefore

illegal. Accordingly, we reverse those sentences and remand for the trial court to

impose sentences that do not exceed fifteen years.

-2- Last, although not raised by the parties, we observe a scrivener's error in

the corrected judgment rendered on January 12, 2018. That judgment indicates that for

counts five and six Rioux was convicted of lewd or lascivious molestation on a victim

between the ages of twelve and sixteen. However, the record reflects that Rioux

pleaded guilty to all six counts as charged, and the charging information alleged that the

victims for counts five and six were both under twelve years of age. See also Rioux v.

State, 48 So. 3d 1029, 1029 (Fla. 2d DCA 2010) (affirming Rioux's convictions for "lewd

molestation on persons less than twelve years old"). Accordingly, on remand the trial

court shall also render a corrected judgment amending counts five and six to reflect that

Rioux was adjudicated guilty of lewd or lascivious molestation on a person less than

twelve by a person less than eighteen.

Reversed and remanded with instructions.

SLEET and BADALAMENTI, JJ., Concur.

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