Opinion
No. 94-1606.
September 12, 1994.
Carvie William Farmer, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.
It appears to this court that appellant did not receive effective assistance of counsel in appealing the denial of his post-conviction relief motion, in that no argument regarding his illegal sentence was raised. Therefore, the petition for writ of habeas corpus is granted and this cause is remanded to the trial court for consideration of petitioner's argument that his sentence is illegal. Should the trial court determine the sentence is illegal then a new sentence should be imposed. If not, then an order so determining, with findings of fact and law, should be entered. Because petitioner appears pro se and is not a lawyer it is incumbent upon the trial judge to proceed in accordance with this opinion without further petition by petitioner. Should such not occur by September 30, 1994, then petitioner should so advise this court.
Writ granted; remanded for further proceedings.
GRIFFIN, J., concurs specially, with opinion.
THOMPSON, J., concurs specially, with opinion.
Appellant's contention that he is automatically entitled to a reduction to a 40-year term is wrong. If counsel were ineffective, and if the sentence is illegal, the state will have the option to withdraw from the plea agreement and to try the defendant for first degree murder, seeking the penalties attendant to a capital felony. Hayes v. State, 598 So.2d 135 (Fla. 5th DCA 1992); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
I agree that the case should be remanded to the trial court because the petitioner's sentence is illegal. To save judicial labor, I add these comments to alert the trial judge and trial counsel to the appropriate sentence if petitioner is resentenced.
The petitioner entered a plea and was sentenced for second degree murder; a felony of the first degree punishable by a term of years not exceeding life. § 782.04(2), Fla. Stat. (1993). Because a firearm was used, the penalty was reclassified to a life felony. § 775.087(1)(a), Fla. Stat. (1993). The maximum penalty that can be imposed for a life felony is a term of life or a term of imprisonment not to exceed 40 years. See State v. Smith, 470 So.2d 764 (Fla. 5th DCA 1985). In this case, petitioner was sentenced to 90 years in the Department of Corrections. Upon remand, the trial court can sentence petitioner to a term of life or a sentence in the DOC not to exceed 40 years. The fact that petitioner agreed to an illegal sentence of 90 years is irrelevant. The trial court has no authority to enter an illegal sentence even with the petitioner's acquiescence. See Dyer v. State, 629 So.2d 285 (Fla. 5th DCA 1993) (even though a plea is entered pursuant to a valid plea agreement, a sentence which exceeds the statutory maximum is illegal and must be corrected).
Because this sentence was the result of a negotiated plea, upon remand the petitioner should be allowed to withdraw his plea or the state may elect to adopt the same plea bargain with the illegal sentence corrected. See, e.g., Forbert v. State, 437 So.2d 1079 (Fla. 1983).