Richard Warren Vanzile v. State of Florida , 2016 Fla. App. LEXIS 15063 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RICHARD WARREN VANZILE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1211
STATE OF FLORIDA, CORRECTED PAGES: pg 2
CORRECTION IS UNDERLINED IN
Appellee. RED
MAILED: October 10, 2016
BY: KMS
_____________________________/
Opinion filed October 10, 2016.
An appeal from an order of the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.
Michael R. Rollo, Pensacola, for Appellant.
Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant filed a rule 3.800(a) motion to withdraw his plea to a negotiated
sentence of lifetime sexual offender probation after five years’ imprisonment,
imposed following a conviction for attempted sexual battery on a victim less than
12 years of age, a first-degree felony. In that motion, Appellant correctly argues
that the sentence exceeds the 30-year statutory maximum for a first-degree felony
per sections 775.082 and 777.04(4)(b), Florida Statutes. The trial court denied the
motion and Appellant filed this appeal.
In recognition of the State’s response to this Court’s Toler1 order, we affirm
the trial court’s order on appeal without prejudice to the Appellant’s timely filing
of a rule 3.850 motion seeking to withdraw his plea to this sentence, if he chooses
to do so. See Leavitt v. State, 810 So. 2d 1032 (Fla. 1st DCA 2002) (a defendant
cannot plead to an illegal sentence, even when it arises from a negotiated plea
agreement); Nedd v. State, 855 So. 2d 664 (Fla. 2d DCA 2003) (defendant needed
to raise a claim of an illegal sentence that arose out of a negotiated plea agreement
in a rule 3.850 motion because plea withdrawal was a potential consequence);
Haynes v. State, 106 So. 3d 481 (Fla. 5th DCA 2013) (defendant’s claim of an
illegal sentence must be raised in a rule 3.850 motion because he sought to
withdraw from his plea, and doing so was at his own peril because he risked a
greater sentence). If a rule 3.850 motion is brought by the Appellant, the State will
have the option to either agree to resentencing or to withdraw from the plea
agreement and proceed to trial on the original charge. Nedd; Bruno v. State, 837
So. 2d 521 (Fla. 1st DCA 2003).
1
Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
2
As to the remaining claims, we affirm the trial court’s order of denial.
AFFIRMED.
WOLF, BILBREY, and M.K. THOMAS, JJ., CONCUR.
3