Howe v. State, 90-03067

Decision Date10 April 1992
Docket NumberNo. 90-03067,90-03067
Citation596 So.2d 1227
PartiesUcal HOWE, Appellant, v. STATE of Florida, Appellee. 596 So.2d 1227, 17 Fla. L. Week. D930
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Timothy J. Ferreri, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

Ucal Howe appeals his sentence imposed after a jury found him guilty of attempted second-degree murder with a firearm. The trial court adjudicated Howe guilty and sentenced him to twenty-two years' imprisonment with a minimum mandatory of three years, to be followed by twenty years' probation. Howe argues that this sentence is illegal. We agree and reverse, concluding that the split sentence exceeds the maximum period of incarceration provided by law.

Murder in the second degree is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. See Sec. 782.04(2), Fla.Stat. (1989). Since Howe's offense was attempted murder in the second degree, the punishment is reduced to a felony of the second degree. See Sec. 777.04(4)(b), Fla.Stat. (1989). Howe's use of a firearm in the commission of the attempted offense reclassifies the offense to a felony of the first degree. See Sec. 775.087(1)(b), Fla.Stat. (1989). The maximum sentence for this crime is thirty years' imprisonment. Sec. 775.082(3), Fla.Stat. (1989). See Dion v. State, 409 So.2d 1216 (Fla. 3d DCA 1982). See also Miller v. State, 460 So.2d 373 (Fla.1984).

The sentence consisting of incarceration and probation cannot exceed the maximum period of incarceration provided by law. Smith v. State, 584 So.2d 154 (Fla. 2d DCA 1991). Thus Howe's forty-two-year split sentence is illegal. Howe did not waive this error by failing to object below. See Forshee v. State, 579 So.2d 388 (Fla. 2d DCA 1991).

Reversed and remanded for the trial court to impose a sentence which does not exceed the limits set forth in section 775.082(3), Florida Statutes (1989).

CAMPBELL, A.C.J., and McDONALD, RANDALL G., Associate Judge, concur.

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5 cases
  • Pearson v. State, 90-2148
    • United States
    • Florida District Court of Appeals
    • August 18, 1992
    ...the maximum term of years permitted under the statute. See Ward v. State, 558 So.2d 166 (Fla. 1st DCA 1990); see also Howe v. State, 596 So.2d 1227 (Fla. 2d DCA 1992). Also, the fifteen-year mandatory minimum cannot be imposed because, as stated in Lamont, subsections 775.084(4)(a) and (b) ......
  • Baque v. State, 93-2768
    • United States
    • Florida District Court of Appeals
    • April 19, 1995
    ...See Miller v. State, 460 So.2d 373, 374 (Fla.1984); Zeigler v. State, 647 So.2d 272, 273 n. 1 (Fla. 4th DCA 1994); Howe v. State, 596 So.2d 1227, 1227 (Fla. 2d DCA 1992); Montoya v. State, 489 So.2d 794, 795 (Fla. 3d DCA), review denied, 496 So.2d 143 (Fla.1986); Davis v. State, 486 So.2d 4......
  • State v. Rinkins, s. 92-2425
    • United States
    • Florida District Court of Appeals
    • March 31, 1994
    ...of 30 years' imprisonment under the generic statutory sentencing provisions. Sec. 775.082(3)(b), Fla.Stat. (1989); Howe v. State, 596 So.2d 1227 (Fla. 2d DCA 1992). Section 775.087(2)(a), Florida Statutes (Supp.1990), imposes a three-year minimum mandatory prison sentence where, as here, a ......
  • Harris v. State, 93-2008
    • United States
    • Florida District Court of Appeals
    • February 1, 1995
    ...state relies whether the specific argument which the defendant advances was made in those cases. However, the courts in Howe v. State, 596 So.2d 1227 (Fla.2d DCA 1992), and Montoya v. State, 489 So.2d 794 (Fla.3d DCA 1986), did use the method of calculation used by the trial court here. Thi......
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