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37 So. 3d 989

Grable v. State

District Court of Appeal of Florida · decided 2010-07-02

Relies on 793 So. 2d 117 - Jackson v. State · 722 So. 2d 858 - Bradford v. State · Windisch v. State

Decided 2010-07-02

CRENSHAW, Judge.

¶1 Dexter D. Grable appeals his concurrent twenty-year minimum mandatory sentences for attempted second-degree murder and shooting into a building. We reverse and remand for resentencing because the offense of shooting into a building is a second-degree felony punishable by a term of imprisonment not exceeding fifteen years, and it is not an offense for which the minimum mandatory sentence can be imposed.

¶2 Grable pleaded no contest to attempted second-degree murder and shooting into a building, and he was sentenced to a concurrent twenty years’ imprisonment with the minimum mandatory sentence imposed on each count pursuant to section 775.087, Florida Statutes (2007). Grable filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error arguing that his sentence for shooting into a building was illegal because that offense, under section 790.19, Florida Statutes (2007), is not a listed offense for which *990 the minimum mandatory sentence can be imposed under section 775.087(2)(a)(l). Although the trial court eventually granted the motion and amended Grable’s sentence, it did so beyond the sixty-day time period set forth in rule 3.800(b)(2)(B). Therefore, Grable’s motion is deemed denied and the amended sentence is a nullity. See Fla. R.Crim. P. 3.800(b)(2)(B); Pearce v. State, 968 So.2d 92, 94 (Fla. 2d DCA 2007); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001).

¶3 The trial court recognized and the State properly concedes that Grable’s sentence for shooting into a building is illegal. The minimum mandatory sentence provision in section 775.087(2)(a)(l) does not apply to a conviction under section 790.19. See Bradford v. State, 722 So.2d 858, 860 (Fla. 1st DCA 1998); Samuels v. State, 681 So.2d 915, 915-16 (Fla. 4th DCA 1996); see also Simmons v. State, 457 So.2d 534, 535 (Fla. 2d DCA 1984). We also note that the sentence of twenty years’ imprisonment for shooting into a building is illegal because the offense is a second-degree felony punishable by a term of imprisonment not exceeding fifteen years. See §§ 790.19, 775.082(3)(c). Accordingly, we reverse Grable’s sentence and remand for the imposition of a corrected sentence consistent with this opinion. 1

¶4 Reversed and remanded for resentenc-ing.

WHATLEY and SILBERMAN, JJ., Concur.
1

¶5 . We note that Grable need not be present for the entry of the corrected sentence. See Win-disch v. State, 709 So.2d 606, 607 (Fla. 2d DCA 1998).

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