Wallen v. State
| Decision Date | 30 April 2004 |
| Docket Number | No. 5D04-326.,5D04-326. |
| Citation | 877 So.2d 737 |
| Parties | Eric S. WALLEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Eric S. Wallen, Clermont, pro se. Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
Eric S. Wallen appeals the summary denial of his Florida Rules of Criminal Procedure 3.800(a) motion in which he alleged that although he entered into a plea agreement to serve a fifteen-year sentence for aggravated assault with a deadly weapon, the sentence is illegal.
Aggravated assault with a deadly weapon is a third-degree felony under section 784.021(1)(a), Florida Statutes (1991), with a statutory maximum of five years. It is not clear from the record whether Wallen was sentenced as an habitual felony offender or a violent felony offender for this offense, but the maximum sentence for the habitual felony offender is ten years with a five-year minimum mandatory sentence if he was found to be a violent felony offender. See § 775.084(4)(b)3, Fla. Stat. (1991). While Wallen agreed to the longer fifteen-year sentence, this does not bar him from attacking the same as an illegal sentence. See, e.g., Larson v. State, 572 So.2d 1368 (Fla.1991); Wheeler v. State, 864 So.2d 492 (Fla. 5th DCA 2004).
The aggravated assault with a deadly weapon count was only one of several counts that resulted in consecutive and concurrent sentences totaling seventy-five years. We only vacate the sentence for the aggravated assault with a deadly weapon count, rejecting Wallen's claim that his sentence for aggravated battery was also illegal. We remand to allow the State the option of agreeing to a legal sentence on the aggravated assault with a deadly weapon count or withdrawing from the plea agreement so that it may proceed to trial on all counts. See, e.g., Barthel v. State, 862 So.2d 28 (Fla. 2d DCA 2003) (); Tarlbert v. State, 766 So.2d 457 (Fla. 5th DCA 2000) (); Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000) (...
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Rodriguez v. State, 2D03-2120.
... ... Thus on remand, the State can either consent to an alternate sentencing scheme for these crimes or withdraw from the plea agreement and proceed to trial. See Casey v. State, 788 So.2d 1121 (Fla. 2d DCA 2001); Wallen v. State, 877 So.2d 737 (Fla. 5th DCA 2004) ... Reversed and remanded ... FULMER and STRINGER, JJ., Concur ... -------- Notes: 1. See § 784.021, Fla. Stat. (2001) ... 2. See § 784.03(2), Fla ... ...
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Rodriguez v. State, 2D02-4416.
... ... On remand, the State will have the option of (1) agreeing that Rodriguez shall be resentenced to a legal sentence for this charge or (2) withdrawing from the plea agreement and proceeding to trial on the original charges. See Barthel v. State, 862 So.2d 28, 29 (Fla. 2d DCA 2003); see also Wallen v. State, 877 So.2d 737, 738 (Fla. 5th DCA 2004) ... Reversed and remanded ... SALCINES and CANADY, JJ., Concur ... -------- Notes: 1. Rodriguez's counsel initially filed a brief pursuant to Anders v. California, 386 ... ...
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Almenares v. State
... ... See, Wallen v. State, 877 So.2d 737, 29 Fla. L. Weekly D1059 (Fla. 5th DCA April 30, 2004); Barthel v. State, 862 So.2d 28 (Fla. 2d DCA 2003) ... We reverse the trial court's denial of Almenares' rule 3.800 motion and remand this matter to the trial court for further proceedings. We further ... ...
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Minnick v. State, Case No. 2D07-3934 (Fla. App. 10/22/2008)
... ... State, 813 So. 2d 248 (Fla. 2d DCA 2002); Wallen v. State, 877 So. 2d 737, 738 (Fla. 5th DCA 2004) (noting that defendant's agreement to a certain sentence "does not bar him from attacking the same as an illegal sentence") (citing Larson v. State, 572 So. 2d 1368 (Fla. 1991)). Because Minnick was sentenced as a PRR in the absence of a qualifying ... ...