Merrell v. State

Full title: Gary MERRELL, Appellant, v. The STATE of Florida, Appellee

Court: District Court of Appeal of Florida, Third District

Date published: Dec 31, 2008

998 So. 2d 659 (Fla. Dist. Ct. App. 2008)

Opinion

No. 3D07-1865.

December 31, 2008.

Appeal from the Circuit Court, Miami-Dade County, Dennis J. Murphy, J.

Gary Merrell, in proper person.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

The defendant, Gary Merrell ("Merrell"), appeals the trial court's denial of his motion to correct what he claims were illegal sentences imposed in case numbers 89-5490(A), 89-5491, 89-5618, 89-5619, 89-5620(A), and 89-8856. We affirm.

Merrell was charged with committing multiple offenses under multiple case numbers. On October 1, 1990, Merrell entered a plea of guilty to the offenses charged in the above-listed cases and two additional cases not listed in his motion to correct illegal sentences, case numbers 89-4346 and 89-12881. Pursuant to the negotiated plea, Merrell was sentenced to forty-year sentences on each first degree felony punishable by life imprisonment and each life felony, fifteen years on each second degree felony, and five years on the sole third degree felony. The sentence imposed on each count and each case was ordered to run concurrent with the other sentences imposed.

Merrell claims that the habitual offender designations imposed for the life felonies were error. While we agree that in 1990, when the sentences were imposed in the instant cases, a habitual offender sentence was not authorized for life felonies, see Lamont v. State, 610 So.2d 435 (Fla. 1992) (holding that the habitual offender act, as it existed in 1989, did not apply to those who were convicted of life felonies), the forty-year sentences imposed in the instant cases are not illegal sentences subject to correction under rule 3.800(a) because the sentences were imposed pursuant to a negotiated plea. See State v. McBride, 848 So.2d 287 (Fla. 2003) (finding no manifest injustice requiring resentencing of a life felony where McBride pled guilty pursuant to a negotiated plea with the State and received thirty-year sentences for three offenses as a habitual offender and one of the offenses was a life felony).

Merrell pled guilty to the following offenses and received the sentences indicated:

89-4346 Count 1 — aggravated assault 5 years Count 2 — possession of a firearm by a convicted felon 15 years 89-5490(A) Count 1 — attempted first degree murder 40 years Count 2 — armed burglary 40 years Count 3 — armed robbery 40 years Count 4 — armed robbery 40 years Count 5 — armed robbery 40 years Count 6 — possession of a firearm while engaged in a criminal offense. 15 years 89-5491 Count 1 — armed robbery 40 years Count 2 — armed robbery 40 years Count 3 — armed robbery 40 years Count 4 — kidnapping 40 years Count 5 — kidnapping 40 years Count 6 — possession of a firearm while engaged in a criminal offense 15 years 89-5618 Count 1 — armed robbery 40 years 89-5620 (A) Counts 1-4 — armed robbery 40 years Counts 5-8 — armed kidnapping 40 years 89-8856 Count 1 — armed burglary 40 years Count 2 — armed robbery 40 years Count 3 — armed kidnapping 40 years Count 4 — possession of a firearm while engaged in a criminal offense 15 years 89-12881 Count 1 — armed robbery 40 years Although arguably, some of the offenses Merrell pled to are life felonies which were not subject to habitual offender classification in 1990, the forty-year sentences imposed are within the statutory maximum, the sentences were all ordered to run concurrently, and in each case where a habitual offender sentence was imposed for a life felony, the sentence was ordered to run concurrent with a legally authorized forty-year habitual offender sentence. Thus, we find, as the Florida Supreme Court found in McBride, there is no manifest error requiring correction of Merrell's sentences imposed pursuant to his negotiated plea.

We find Merrell's claim, that the sentences imposed in each case must be reversed because they were imposed as "general forty-year sentences," is without merit. The plea transcript reflects that the trial court carefully articulated the individual sentences being imposed as to each count in each case.

Affirmed.