         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D19-3017
                  _____________________________

STEVEN JARROD MCLENDON,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________

Petition for Writ of Habeas Corpus—Original Jurisdiction.


                         August 30, 2019


     ON EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS


PER CURIAM.

     We grant Petitioner’s Emergency Petition for Writ of Habeas
Corpus, and direct his immediate release from incarceration for
the charges addressed here. We write to explain the context of
Petitioner’s sentences, and to provide the procedural background
of this case.

    I. Charges and Sentences.

    In 2007, Petitioner was charged with fifteen crimes including
attempted lewd or lascivious conduct involving a victim between
twelve and sixteen years old, attempted lewd or lascivious
battery of a child less than sixteen years old, eleven counts of
possession of child pornography, and possession of a
misdemeanor amount of cannabis. One additional charge was
nolle-prossed. The attempted lewd or lascivious conduct and
battery, and the child porn charges, are third-degree felonies
with maximum sentences of five years each. See §§ 800.04(6)
(conduct), 800.04(4) (battery), 777.04(4)(d) (attempt is third-
degree felony); 827.071(5) (child porn); 775.082(3)(e) (five-year
maximum for third-degree felony), Fla. Stat. (2006). Petitioner
pleaded nolo contendere. The trial court sentenced him to three
years in prison for the attempted lewd or lascivious conduct, a
consecutive five years on probation for the attempted lewd or
lascivious battery, consecutive five years’ probation for one of the
child porn charges, and consecutive two years’ probation for
another child porn charge. The court ran all remaining sentences
concurrent with one another and concurrent with the five-year
probationary sentence for the attempted lewd or lascivious
battery. Thus, although the trial court had the discretion to
sentence Petitioner to multiple consecutive sentences, the court
imposed a sentence of three years in prison followed by twelve
years on sex-offender probation. Petitioner was required to
participate in sex-offender counseling and to register as a sex
offender under section 943.0435 of the Florida Statutes. He was
prohibited from possessing any form of pornography or obscene or
sexually-stimulating material, from having a computer, and from
accessing the internet in any way.

     Petitioner served approximately thirty months in prison,
from 2007 to 2010. Upon being released, he began serving his
twelve years of probation, which would end in 2022. In 2010, only
eight months after his release, he was charged with a violation of
probation when his probation officer found sexually-explicit
messages on Petitioner’s cell phone. However, this charge was
dismissed, and Petitioner continued to serve the probationary
portion of his 2007 sentence.

     In late 2014, Petitioner had completed his sentences on
counts 1 and 15 (attempted lewd or lascivious conduct and drug
possession), and was serving his first five-year probationary
period on the attempted lewd and lascivious battery and child
porn charges. He was charged with another violation of probation

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when his probation officer searched his room in his
grandmother’s house and found an iPad hidden under fabric on
his bed. Petitioner admitted the iPad was his. It was capable of
accessing the internet, thus violating two terms of probation. In
2015, after proceedings on these violations, the trial court
revoked Petitioner’s probation and sentenced him on all charges
collectively to a term of five years in prison plus two years’
probation. His sex-offender requirements remained in place.

      This 2015 sentence is important in three respects. First, the
trial court (a successor judge) did not re-impose independent or
consecutive sentences on each of the remaining original charges,
which could have resulted in a longer overall sentence that could
have both honored the original sentences (although the successor
judge was not required to do so), and forestalled the present
situation. Second, by imposing this sentence on all remaining
charges collectively, the trial court eliminated the possibility of
using consecutive sentences to extend the overall sentence past
five years. The result was a seven-year split sentence on crimes
subject to a statutory maximum sentence of five years. Third, the
2015 sentence included a provision granting Petitioner credit for
all time previously served “on this case,” plus another 281 days of
jail credit.

     The net effect of the 2015 sentence terms was that
Petitioner’s original 2007 sentence of fifteen years, expiring in
2022 (except for any ongoing sex-offender requirements), became
a sentence of only fifteen months more than Petitioner had
served from 2007 to 2010. He returned to prison in July of 2015
and was released on November 1, 2016. At that point, Petitioner
had served the entirety of the legal portion of his sentence, and
the trial court no longer had jurisdiction over him. See Aponte v.
State, 896 So. 2d 836, 838 (Fla. 1st DCA 2005) (reversing
sentences resulting from revocation proceedings in third-degree
felony cases because trial court lost jurisdiction once appellant
had spent five years incarcerated or on probation). Nevertheless,
because this issue was overlooked, Petitioner was placed on
probation for two years as sentenced, to expire November 1, 2018.
He did not appeal or file a collateral motion to assert that the
sentence was illegal for exceeding five years. See Campbell v.
State, 854 So. 2d 257, 258 (Fla. 1st DCA 2003) (reversing for

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further proceedings on appellant’s motion under Fla. R. Crim. P.
3.800(a) raising illegality of sentence over five years for a third-
degree felony). Although these sentences were entered after a
plea, “[e]ven with a defendant’s consent, the court is without
jurisdiction to impose a sentence beyond the statutory
maximum.” Gonzales v. State, 816 So. 2d 720, 722 (Fla. 5th DCA
2002); cf. Carson v. State, 37 So. 3d 884, 886 (Fla. 1st DCA 2010)
(finding that the trial court could properly impose a special type
of probation to which the defendant pleaded even if it could not
impose it in the absence of a plea).

     In April of 2018, when it seemed Petitioner was still within
his two-year probationary period from the 2015 sentence, he was
charged with a violation of probation for the new law offense of
battery on a person age 65 or older, apparently the 81-year-old
grandmother who had raised him. He was drunk, got into an
argument with her, and pushed her down, dislocating her
shoulder and injuring her arm. He admitted the allegations. At
the sentencing hearing for the violation of probation, the parties
discussed that any sentencing for the new law violation itself
would occur later. Petitioner’s counsel incorrectly advised the
trial court that the attempted lewd or lascivious battery charge
was a second-degree felony with a maximum sentence of ten
years, and that the parties had agreed to a ten-year sentence.
Petitioner entered this negotiated no-contest plea pursuant to
which he was sentenced to ten years in prison for the attempted
lewd or lascivious battery charge, with five years’ probation for
the child porn charges. Petitioner then moved to withdraw his
plea on grounds that he wished he had waited until finding out
the outcome of his new charge. The trial court denied that
motion, and Petitioner appealed (our case number 1D18-3384).
The battery charge was later dismissed because the victim
declined to press charges, which has no bearing on our analysis
here.

    II. Procedures During Appeal.

     On appeal from the 2018 judgment and sentence, Petitioner’s
appointed counsel filed an Anders brief concluding there were no
good faith arguments for reversal. Upon this Court’s independent
review, however, it was noted that the 2018 sentence appeared to

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be illegal. As already noted, no crime before the sentencing court
could legally carry a sentence over five years in prison. However,
during the 2018 VOP plea hearing, Petitioner’s trial counsel had
asserted (erroneously) that this was a second-degree felony, and
the Judgment and Sentence then erroneously listed this offense
as a second-degree felony and imposed a sentence of 10 years in
prison. Regardless of the purported plea agreement to the ten-
year sentence, it was illegal. See Butler v. State, 231 So. 3d 596,
597 (Fla. 1st DCA 2017) (noting that split sentence exceeding five
years for third-degree felony is illegal). We therefore struck the
initial brief in the Anders appeal to allow Petitioner to pursue
trial court proceedings to correct the sentencing error under
Florida Rule of Criminal Procedure 3.800(b)(2).

     Petitioner filed a 3.800(b) motion in the circuit court. The
trial court denied this motion on grounds that Petitioner had
agreed to the negotiated plea, and in the event of an illegal
sentence the state could agree to resentencing or withdraw from
the plea agreement and proceed to trial; or Petitioner could file a
motion seeking relief under rule 3.850. The order cited Bruno v.
State, 837 So. 2d 521, 523 (Fla. 1st DCA 2003) (describing state’s
options after a plea to an illegal sentence); and Vanzile v. State,
201 So. 3d 809 (Fla. 1st DCA 2016) (allowing pursuit of 3.850
motion after denial of 3.800(a) motion).

     Petitioner’s counsel then filed the present habeas petition in
the direct appeal. Because habeas is an original proceeding, we
opened a new case for it (case number 1D19-3017), and ordered
the State to show cause why the Petition should not be granted.
The State filed a response agreeing that, because the 2015
sentence illegally exceeded the five-year statutory maximum for
the crimes, and because of the credit for time served in prison
and jail “on this case,” plus 126 days’ gain time earned, Petitioner
had served all time validly sentenced and was not legally on
probation when he committed the new law offense of battery on
an elderly person. See Aponte, 896 So. 2d at 838. Because
Petitioner was not subject to probation at the time of the 2018
offense, he could not be punished for violating probation by
battering his elderly grandmother (and because that charge was
dismissed, there remains no independent crime for which to
sentence him as far as these facts reveal). Thus, the State has

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agreed that Petitioner is entitled to immediate release from
incarceration.

    III. Disposition.

     We agree that on the facts presented, Petitioner’s 2018
judgment and sentence were illegal. We vacate them, and by
separate order we dismiss as moot case number 1D18-3384 (the
direct appeal). We grant the Petition, issue the requested Writ of
Habeas Corpus, and direct that Petitioner be released from
custody immediately as to Escambia County Circuit Court case
number 2006-CF-6061. In light of the State’s concession to this
disposition, we direct the Clerk of this Court to issue mandate
herein immediately.

    PETITION GRANTED and WRIT ISSUED.

B.L. THOMAS, KELSEY, and M.K. THOMAS, JJ., concur.

                 _____________________________

Andy Thomas, Public Defender; and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Petitioner.

Ashley Moody, Attorney General; and Barbara Debelius,
Assistant Attorney General, Tallahassee, for Respondent.




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