NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RUSSELL RIOUX, )
)
Appellant, )
)
v. ) Case No. 2D17-4042
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed June 28, 2019.
Appeal from the Circuit Court for Polk
County; James A. Yancey, Judge.
Howard L. Dimmig, II, Public Defender,
and Karen M. Kinney, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for
Appellee.
NORTHCUTT, Judge.
Following a second resentencing proceeding, the trial court sentenced
Russell Rioux to twenty-three years' imprisonment to be followed by life probation for
each of six counts: four counts of sexual battery on a person less than twelve by a
person less than eighteen (counts one through four) and two counts of lewd or
lascivious molestation on a person less than twelve by a person less than eighteen
(counts five and six). Rioux then initiated this appeal. During the pendency of the
appeal, Rioux filed a motion to correct sentencing errors under Florida Rule of Criminal
Procedure 3.800(b)(2), alleging, among other things, that the sentences on counts five
and six exceeded the statutory maximum of fifteen years' imprisonment. The trial court
granted that motion and, in relevant part, reduced the sentences for counts five and six
to fifteen years' imprisonment. However, the amended sentencing document still
included the life probationary terms for those offenses. Rioux therefore filed another
rule 3.800(b)(2) motion, alleging that the aggregate length of his split sentences still
exceeded the statutory maximum. The trial court failed to rule on that second motion
within the sixty days provided by rule, resulting in its being deemed denied. See Fla. R.
Crim. P. 3.800(b)(2)(B).
The State correctly acknowledges that the sentences for counts five and
six remain illegal. Counts five and six are both second-degree felonies that are
punishable by a maximum of fifteen years' imprisonment. See §§ 800.04(5)(c)(1),
775.082(3)(c), Fla. Stat. (2007). And "[t]he law is clear that when a defendant is
sentenced to a split sentence consisting of incarceration and probation, as provided by
statute, the combined sanction cannot exceed the maximum period of incarceration
provided by law." Smith v. State,
584 So. 2d 154, 154 (Fla. 2d DCA 1991) (citing State
v. Holmes,
360 So. 2d 380, 383 (Fla. 1978)). The sentences imposed on counts five
and six of fifteen years' imprisonment to be followed by life probation are therefore
illegal. Accordingly, we reverse those sentences and remand for the trial court to
impose sentences that do not exceed fifteen years.
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Last, although not raised by the parties, we observe a scrivener's error in
the corrected judgment rendered on January 12, 2018. That judgment indicates that for
counts five and six Rioux was convicted of lewd or lascivious molestation on a victim
between the ages of twelve and sixteen. However, the record reflects that Rioux
pleaded guilty to all six counts as charged, and the charging information alleged that the
victims for counts five and six were both under twelve years of age. See also Rioux v.
State,
48 So. 3d 1029, 1029 (Fla. 2d DCA 2010) (affirming Rioux's convictions for "lewd
molestation on persons less than twelve years old"). Accordingly, on remand the trial
court shall also render a corrected judgment amending counts five and six to reflect that
Rioux was adjudicated guilty of lewd or lascivious molestation on a person less than
twelve by a person less than eighteen.
Reversed and remanded with instructions.
SLEET and BADALAMENTI, JJ., Concur.
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