Payne v. State

• Decision Date: 26 August 1998
• Docket Number: No. 97-4034,97-4034
• Citation: 720 So.2d 555
• Parties: 23 Fla. L. Weekly D1983 Jeffrey PAYNE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 555

720 So.2d 555

23 Fla. L. Weekly D1983

Jeffrey PAYNE, Appellant, v. STATE of Florida, Appellee.

No. 97-4034.

District Court of Appeal of Florida, Fourth District.

Aug. 26, 1998.

Rehearing Denied Oct. 2, 1998.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

SHAHOOD, Judge.

We affirm appellant's, Jeffrey Payne, conviction and sentence for possession of cocaine and resisting arrest without violence.

The maximum penalty for the third-degree felony of possession of cocaine is five years or sixty months imprisonment. See §§ 893.13(6)(a) and 775.082(3)(d), Fla. Stat. (1997). In this case, appellant's scoresheet reflected a recommended sentence of 61.2 months in prison with a minimum recommendation of 45.9 months and a maximum recommendation of 76.5 months. The trial court sentenced him to 65 months in prison. Appellant contends the sentence is illegal because it exceeds the guidelines scoresheet recommended sentence.

This issue was addressed and resolved in favor of appellant's position by this court in Myers v. State, 696 So.2d 893 (Fla. 4th DCA), rev. granted, 703 So.2d 477 (Fla.1997); see also O'Neal v. State, 707 So.2d 1190 (Fla. 4th DCA 1998); Thompson v. State, 707 So.2d 1191 (Fla. 4th DCA 1998); Hindenach v. State, 708 So.2d 336 (Fla. 4th DCA 1998); Solomon v. State, 23 Fla.L.Weekly D864, 720 So.2d 1084 (Fla. 4th DCA 1998). In Myers, we held that a defendant's sentence may exceed the statutory maximum when the recommended guidelines sentence exceeds the statutory maximum. In such cases, however, we held that the trial court has no discretion to enhance a recommended sentence that already exceeds the maximum set by the penalty statute. Our holding in Myers was at odds with cases from the First, Third, and Fifth Districts; therefore, we certified conflict with Floyd v. State, 707 So.2d 833 (Fla. 1st DCA 1998);Mays v. State, 693 So.2d 52 (Fla. 5th DCA), rev. granted, 700 So.2d 686 (Fla.1997); Martinez v. State, 692 So.2d 199 (Fla. 3d DCA), rev. dismissed, 697 So.2d 1217 (Fla.1997); and Green v. State, 691 So.2d 502 (Fla. 5th DCA), rev. granted, 699 So.2d 1373 (Fla.1997).

The Florida Supreme Court recently granted review in Mays and Myers, approving the holding in the former and quashing the latter. See Mays v. State, 717 So.2d 515 (Fla.1998); State v. Myers, 713 So.2d 1013, 23 Fla. L. Weekly S387 (Fla.1998). Based on Mays, we therefore affirm appellant's sentence in this case, which represents the recommended guidelines sentence plus the discretionary enhancement.

AFFIRMED.

DELL and TAYLOR, JJ., concur.