Butler v. State , 343 So. 2d 93 ( 1977 )

343 So. 2d 93 (1977)

James BUTLER, Appellant,
v.
STATE of Florida, Appellee.

No. 76-597.

District Court of Appeal of Florida, Third District.

March 8, 1977.

William J. Brown, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.

Before HENDRY, C.J., and PEARSON and BARKDULL, JJ.

PER CURIAM.

Appellant, James Butler, was charged in a four-count information as follows: conspiracy to commit robbery, Count One; aggravated assault, Count Two; robbery, Count Three; and unlawful possession of a firearm while engaged in a criminal transaction, Count Four.

A jury found him guilty as to all counts of the information. The court sentenced him to consecutive prison terms of fifteen (15) years, fifteen (15) years, and ninety-nine (99) years on Counts One, Two and Three, respectively; as to Count Four, he was sentenced to fifteen (15) years to run concurrently with the sentence imposed as to Count Three. This appeal is from the judgment and sentences.

We have carefully considered the record on appeal, briefs and arguments of counsel and are of the opinion that the judgment appealed is substantially free of error and should be affirmed. We note, however, that aggravated assault, Section 784.021, Florida Statutes (1975) is a felony of the third degree carrying a sentence not exceeding five (5) years. Section 775.082, Florida Statutes (1975).

In exceeding the maximum sentence allowed for that particular crime, we believe the trial judge committed fundamental error which should be corrected, notwithstanding the failure of appellant to raise the illegality of his sentence in the trial court. Williams v. State, 280 So. 2d 518 (Fla.3d DCA 1973).

As pertains to Count Two, aggravated assault, the sentence imposed is reversed and remanded with directions to resentence appellant in accordance with the applicable statutory limitations. In all other respects, the judgment and sentences are affirmed.

Affirmed in part; reversed and remanded in part.