Opinion
Case No. 2D98-02900
Opinion filed October 13, 2000.
Appeal from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.
Gerald A. Perez, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
In July 1998 Mr. Stuart appealed to this court sentences in two cases. They were Circuit Court Case No. 97-17927: twenty years' incarceration followed by fifteen years' probation for robbery; and Circuit Court Case No. 97-20100: ten years' probation for two counts of vehicular homicide, to run concurrently with the probation for the robbery conviction. Mr. Stuart had pleaded guilty to these charges but appealed without reserving an issue as dispositive, and without filing a motion to correct an unlawful sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b). We dismissed his appeal and cited Leonard v. State, 731 So.2d 2 (Fla. 2d DCA 1999) as controlling authority.See Stuart v. State, No. 98-02900 (Fla. 2d DCA June 2, 1999). Our decision in Leonard, which is legally indistinguishable from Mr. Stuart's case, was reversed. See Leonard v. State, 760 So.2d 114 (Fla. 2000). Mr. Stuart had sought further review in the supreme court and, based on the reversal in Leonard, the supreme court also reversed Mr. Stuart's case for proceedings consistent with Maddox v. State, 760 So.2d 89 (Fla. 2000). See Stuart v. State, 763 So.2d 319, (Fla. July 13, 2000). Now on remand, the case is before us for review on the merits.
He was adjudicated guilty of violating section 812.135, Florida Statutes (1997), a first degree felony for which thirty years is the maximum allowable penalty. See § 775.082(3)(b).
These two counts were violations of section 782.071, Florida Statutes (1997), each a third degree felony for which five years is the maximum allowable penalty. See § 775.082(3)(d).
The State has candidly conceded the illegality of the two sentences Mr. Stuart received. Therefore, in accordance with the supreme court's opinions in Leonard and Maddox, and the mandate in Stuart, we reverse the two sentences Mr. Stuart complains of and remand the cases to the trial court for imposition of sentences within the statutory maximums.
Reversed and remanded for resentencing.
PATTERSON, C.J., and ALTENBERND and CASANUEVA, JJ., Concur.