                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

OBIE DEWAYNE HOLLIMAN,                NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-5886

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed December 9, 2014.

An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.

Obie Dewayne Holliman, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      Appellant appeals the denial of a motion to correct illegal sentence which

raised three claims. We affirm the denial of grounds two and three without further

discussion. For the reasons discussed below, we reverse and remand the denial of

ground one for further proceedings.
      In ground one, Appellant asserts that his seventeen-year sentence for

possession of a firearm by a convicted felon is illegal because it exceeds the

fifteen-year statutory maximum for a second degree felony. Although it appears

the sentences were imposed pursuant to a plea agreement, a defendant cannot plead

to an illegal sentence. See Larson v. State, 572 So. 2d 1368 (Fla. 1991) (“[A]

defendant cannot by agreement confer on a judge authority to exceed the penalties

established by law”); Darling v. State, 886 So. 2d 417, 418 (Fla. 1st DCA 2004)

(reversing a sentence that exceeded the statutory maximum even though the

defendant had agreed to the sentence).

      The trial court would have been correct to deny Appellant’s motion if his

seventeen year sentence is the lowest permissible under the criminal punishment

code. See § 921.0024(2), Fla. Stat. (2009); Perkins v. State, 123 So. 3d 678 (Fla.

2d DCA 2013) (“[W]hen the lowest permissible sentence under the criminal

punishment code exceeds the statutory maximum, the former becomes the

maximum sentence a court can impose.”). Assuming for argument’s sake that the

lowest permissible sentence under the sentencing guidelines is less than seventeen

years, the remedy would not be an automatic resentencing if the sentence was

imposed pursuant to a negotiated plea. Instead, the State would have the option of

agreeing to a legal sentence or withdrawing from the plea. See Taylor v. State, 899

So. 2d 1191 (Fla. 1st DCA 2005).

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      Given the severely abbreviated record on appeal, * we are not able to engage

in meaningful appellate review of the trial court’s order. Appellant’s lowest

permissible sentence under the sentencing guidelines cannot be determined based

on the record before us, which does not include his sentencing guidelines

scoresheet. Nor does the record establish whether the plea was a negotiated plea

for a specific sentence or an open plea with sentencing at the trial court’s

discretion.

      In cases such as this, where the record fails to show conclusively that the

appellant is not entitled to relief, this court has consistently reversed and remanded

for the trial court either to attach to its order the portions of the record refuting the

appellant’s claim or to grant the requested relief. Fla. R. App. P. 9.141(b)(2)(d);

see, e.g., Brown v. State, 132 So. 3d 363 (Fla. 1st DCA 2014); Cummings v. State,

106 So. 3d 33 (Fla. 1st DCA 2013); Higginbotham v. State, 69 So. 3d 1041 (Fla.

1st DCA 2011). But see Casteel v. State, 39 Fla. L. Weekly D1181 (Fla. 4th DCA

2014) (“We do not accept the State’s concession. The Florida Supreme Court has

made clear that a trial court is not required to attach any records to an order

denying a rule 3.800(a) motion. Johnson v. State, 60 So.3d 1045, 1051 (Fla. 2011).



*
  The record on appeal is limited to “copies of the motion, response, reply, order on
the motion, motion for rehearing, response, reply, order on the motion for
rehearing, and attachments to any of the foregoing, together with the certified copy
of the notice of appeal.” Fla. R. App. P. 9.141(b)(2)(A).
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The burden is on the movant to show his entitlement to relief is clear on the face of

the record. Id.”).

      Accordingly, we reverse and remand the order under review for the trial

court to either attach the portion of the record that refutes Appellant's claim that his

seventeen-year sentence for possession of a firearm by a convicted felon is illegal,

to resentence Appellant to a legal sentence if the plea was an open plea, or, if the

sentence was the result of a negotiated plea, to grant the state the option of (a)

agreeing to a resentencing or (b) withdrawing from the plea and proceeding to trial

on the original charges.

      AFFIRMED in part, REVERSED and REMANDED in part for proceedings

consistent with this opinion.

ROBERTS, RAY, and SWANSON, JJ., CONCUR.




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