State v. Spella, 89-2166
| Citation | 567 So.2d 1051 |
| Decision Date | 11 October 1990 |
| Docket Number | No. 89-2166,89-2166 |
| Parties | 15 Fla. L. Weekly D2551 STATE of Florida, Appellant, v. Ronald Edward SPELLA, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
Robert L. Doyel, Bartow, for appellee.
The state has appealed an order correcting an allegedly illegal sentence. We reverse.
This case arose out of a shooting incident at a shopping mall in Melbourne, Florida that occurred on November 22, 1986. Defendant apparently confronted his estranged wife in the mall where she worked, pulled a gun, and shot her in the stomach. She fled into a nearby store, closely pursued by appellee, who fired a number of additional shots. The defendant was then confronted by an off-duty police officer who was working as a security guard at one of the stores. Defendant shot the guard three times before the guard shot back, injuring the defendant. In a six count second amended information defendant was charged as follows:
Count I Attempted first degree murder of Jane Spella
Count II Attempted second degree murder of Robin Romano
Count III Battery upon a law enforcement officer
Count IV Unlawfully shooting into a public building
Count V Use of a firearm in the commission of a felony (attempted murder and/or shooting into a building and/or battery of a law enforcement officer)
Count VI Aggravated assault
Pursuant to a negotiated plea, defendant pled guilty as follows:
Count I Attempted second degree murder of Jane Spella with a firearm
Count II Attempted second degree murder of Robin Romano with a firearm
Count V Possession of a firearm in the commission of a felony
The plea agreement provided for a maximum term of incarceration the court could impose, followed by a term of probation to be determined by the court. The court sentenced the defendant to fifteen years on both Counts I and II, to be served concurrently, ten years to be served in the department of corrections and the remaining five years to be served on probation. A three-year minimum mandatory sentence for use of firearm during the commission of a felony was applied to Count I, but was not applied to Count II. Defendant was also sentenced on Count V to a period of 15 years probation to run consecutive to the sentences in Counts I and II. Defendant did not appeal either the judgment or the sentence.
On July 5, 1989, defendant filed his "Motion to Correct Illegal Sentence" pursuant to rule 3.800 of the Florida Rules of Criminal Procedure. He argued that it was illegal to sentence him on Count V (use of a firearm during the commission of a felony) since possession of a firearm was an essential element of the charge of attempted second degree murder with a firearm. Defendant also argued that had...
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...v. State, 920 So. 2d 1204, 1205 (Fla. 4th DCA 2006); Salazar v. State, 675 So. 2d 654, 655 (Fla. 3d DCA 1996); State v. Spella, 567 So. 2d 1051, 1051 (Fla. 5th DCA 1990); Ferenc v. State, 563 So. 2d 707, 707 (Fla. 1st DCA 1990). Second, permitting defendants to attack their conviction and s......
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...an illegal sentence pursuant to Rule 3.800(a) are in reality, attacks on the convictions and not the sentences. State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990). In Spella, the trial court vacated a sentence for possession of a firearm because it was a necessary included offense of the s......
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Hayes v. State, 91-2067
...be both fair and practical and give relief as soon as it is recognized as due. Finally, this court's decisions in State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990) and Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981), require a plea to be set aside in situations such as the instant one if......
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...judgment or sentence. This is a consistent concept in Florida. Wiley v. State, 604 So.2d 6 (Fla.Dist.Ct.App.1992); State v. Spella, 567 So.2d 1051 (Fla.Dist.Ct.App.1990). See generally United States v. Atkins, 834 F.2d 426 (5th Cir.1987) (construing defendant's motion to correct illegal sen......