       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                       TERRELL OWEN WILSON,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-2769

                            [August 13, 2014]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 56-2012CF000946.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    During a joint sentencing hearing, appellant Terrell Wilson was
sentenced in one case as an adult and in another as a youthful offender,
resulting in a total sentence of ten years incarceration followed by two
years supervision. Because the Youthful Offender Statute mandates a
sentence of incarceration no longer than six years, we find the sentence
illegal.

    Following a jury trial, appellant was convicted of two felony offenses—
(I) aggravated assault and (II) discharging a firearm—subjecting him to
Florida’s 10-20-Life Statute. In a separate case, appellant was charged
with tampering with a witness. Given appellant’s age, the Youthful
Offender Statute applied to both cases as a sentencing option.

    To resolve the matters, appellant entered an open plea on the tampering
charge and was sentenced in both cases at the same hearing. Attempting
to fashion a fair sentence, the trial judge granted youthful offender status
for the aggravated assault and discharging a firearm convictions and
sentenced appellant on each charge to concurrent sentences of four years
incarceration followed by two years supervision. For witness tampering,
the trial judge sentenced appellant as an adult to six years incarceration,
to run consecutive to the first sentence.

   Following the sentence’s rendition, appellant filed a Rule 3.800(b)(2)
motion to correct illegal sentence, asserting that, pursuant to the Youthful
Offender Statute, a youthful offender cannot be sentenced to more than
six years imprisonment. The trial court did not rule on the motion within
60 days of filing and the motion was deemed denied. See Fla. R. Crim. P.
3.800(b)(1)(B) (“If no order is filed within 60 days, the motion shall be
considered denied.”); Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA
2005); De La Fuente v. State, 58 So. 3d 394, 395-96 (Fla. 2d DCA 2011).

    The State concedes on appeal that the mixed youthful offender and
adult sentence was illegal because it was in excess of the six years allowed
by the Youthful Offender Statute. See Allen v. State, 526 So. 2d 69, 70
(Fla. 1988) (construing the statute to mandate a youthful offender not be
committed to custody of Department of Corrections for more than six
years) (quoting State v. Goodson, 403 So. 2d 1337, 1339 (Fla. 1981));
Johnson v. State, 596 So. 2d 495, 497 (Fla. 5th DCA 1992) (mixed youthful
offender and adult sentence over six years illegal). Consistent with the
relief granted in Goelz v. State, 937 So. 2d 1237, 1238 (Fla. 4th DCA 2006),
on remand, appellant may withdraw his open plea, or if he chooses not to,
the court must modify appellant’s sentence to conform to the Youthful
Offender Statute or remove appellant’s youthful offender status and
sentence him as an adult in both cases.

   Reversed and remanded with instructions.

GROSS, CIKLIN, JJ., and KASTRENAKES, JOHN, Associate Judge, concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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