Obie Dewayne Holliman v. State of Florida , 152 So. 3d 783 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
OBIE DEWAYNE HOLLIMAN, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5886
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed December 9, 2014.
An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.
Obie Dewayne Holliman, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant appeals the denial of a motion to correct illegal sentence which
raised three claims. We affirm the denial of grounds two and three without further
discussion. For the reasons discussed below, we reverse and remand the denial of
ground one for further proceedings.
In ground one, Appellant asserts that his seventeen-year sentence for
possession of a firearm by a convicted felon is illegal because it exceeds the
fifteen-year statutory maximum for a second degree felony. Although it appears
the sentences were imposed pursuant to a plea agreement, a defendant cannot plead
to an illegal sentence. See Larson v. State, 572 So. 2d 1368 (Fla. 1991) (“[A]
defendant cannot by agreement confer on a judge authority to exceed the penalties
established by law”); Darling v. State, 886 So. 2d 417, 418 (Fla. 1st DCA 2004)
(reversing a sentence that exceeded the statutory maximum even though the
defendant had agreed to the sentence).
The trial court would have been correct to deny Appellant’s motion if his
seventeen year sentence is the lowest permissible under the criminal punishment
code. See § 921.0024(2), Fla. Stat. (2009); Perkins v. State, 123 So. 3d 678 (Fla.
2d DCA 2013) (“[W]hen the lowest permissible sentence under the criminal
punishment code exceeds the statutory maximum, the former becomes the
maximum sentence a court can impose.”). Assuming for argument’s sake that the
lowest permissible sentence under the sentencing guidelines is less than seventeen
years, the remedy would not be an automatic resentencing if the sentence was
imposed pursuant to a negotiated plea. Instead, the State would have the option of
agreeing to a legal sentence or withdrawing from the plea. See Taylor v. State, 899
So. 2d 1191 (Fla. 1st DCA 2005).
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Given the severely abbreviated record on appeal, * we are not able to engage
in meaningful appellate review of the trial court’s order. Appellant’s lowest
permissible sentence under the sentencing guidelines cannot be determined based
on the record before us, which does not include his sentencing guidelines
scoresheet. Nor does the record establish whether the plea was a negotiated plea
for a specific sentence or an open plea with sentencing at the trial court’s
discretion.
In cases such as this, where the record fails to show conclusively that the
appellant is not entitled to relief, this court has consistently reversed and remanded
for the trial court either to attach to its order the portions of the record refuting the
appellant’s claim or to grant the requested relief. Fla. R. App. P. 9.141(b)(2)(d);
see, e.g., Brown v. State, 132 So. 3d 363 (Fla. 1st DCA 2014); Cummings v. State,
106 So. 3d 33 (Fla. 1st DCA 2013); Higginbotham v. State, 69 So. 3d 1041 (Fla.
1st DCA 2011). But see Casteel v. State, 39 Fla. L. Weekly D1181 (Fla. 4th DCA
2014) (“We do not accept the State’s concession. The Florida Supreme Court has
made clear that a trial court is not required to attach any records to an order
denying a rule 3.800(a) motion. Johnson v. State, 60 So.3d 1045, 1051 (Fla. 2011).
*
The record on appeal is limited to “copies of the motion, response, reply, order on
the motion, motion for rehearing, response, reply, order on the motion for
rehearing, and attachments to any of the foregoing, together with the certified copy
of the notice of appeal.” Fla. R. App. P. 9.141(b)(2)(A).
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The burden is on the movant to show his entitlement to relief is clear on the face of
the record. Id.”).
Accordingly, we reverse and remand the order under review for the trial
court to either attach the portion of the record that refutes Appellant's claim that his
seventeen-year sentence for possession of a firearm by a convicted felon is illegal,
to resentence Appellant to a legal sentence if the plea was an open plea, or, if the
sentence was the result of a negotiated plea, to grant the state the option of (a)
agreeing to a resentencing or (b) withdrawing from the plea and proceeding to trial
on the original charges.
AFFIRMED in part, REVERSED and REMANDED in part for proceedings
consistent with this opinion.
ROBERTS, RAY, and SWANSON, JJ., CONCUR.
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