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

JOHN GAY,                             NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-2152

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 5, 2017.

An appeal from an order of the Circuit Court for Escambia County.
Edward P. Nickinson, III, Judge.

John Gay, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant challenges the denial of his motion to correct illegal sentence filed

pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed

below, we reverse and remand.
      In 1990, Appellant was convicted of a number of offenses, including capital

sexual battery and attempted capital sexual battery, in a number of cases. He was

sentenced to life imprisonment for the capital sexual battery convictions and for

the attempted capital sexual battery conviction. He filed the instant motion to

correct illegal sentence in August 2015, alleging that his life sentence for attempted

sexual battery exceeds the statutory maximum for the offense. The trial court

denied the motion without explanation. This Court reversed and remanded, holding

as follows:

      The trial court failed to attach any portion of the record refuting the
      appellant’s claim or demonstrating why a life sentence for attempted
      capital sexual battery is legal. Accordingly, we reverse and remand for
      the trial court to attach portions of the record refuting appellant’s
      claim or to grant relief.

Gay v. State, 186 So. 3d 1137, 1138 (Fla. 1st DCA 2016).

      On remand, the trial court denied Appellant’s motion, holding that the life

sentence for attempted capital sexual battery is legal because it was an upward

departure sentence based on the fact that the sentencing guidelines did not provide

for the scoring of the capital sexual battery. However, under the law in effect at

that time, a trial court cannot impose a sentence longer than the statutory

maximum, even if it imposes an upward departure sentence, as the length of any

upward departure sentence is limited to the statutory maximum for the crime. See

§ 921.001(5), Fla. Stat. (1989) (“Sentences imposed by trial court judges must be

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in all cases within any relevant minimum and maximum sentence limitations

provided by statute and must conform to all other statutory provisions.”); Shelton

v. State, 739 So. 2d 1235, 1236-37 (Fla. 4th DCA 1999) (“While we recognize that

a plea agreement may support a departure sentence, the departure sentence must be

within the statutory maximum.”); cf. State v. Williams, 667 So. 2d 191, 192 (Fla.

1996) (“We . . . hold that a departure sentence imposed pursuant to a valid plea

agreement does not require written reasons, provided, of course, that the sentence

does not exceed the statutory maximum . . . .”). Attempted capital sexual battery is

a first-degree felony punishable by up to thirty years’ imprisonment.

§§ 775.082(3)(b); 777.04(4)(a); 794.011(2), Fla. Stat. (1989). Thus, the trial court

was limited to imposing an upward departure sentence of no more than thirty years

for Appellant’s attempted capital sexual battery conviction.

      Accordingly, we reverse and remand the denial of Appellant’s motion for

the trial court to resentence Appellant within the thirty-year statutory maximum for

his attempted capital sexual battery conviction in case 89-5930. See Jordan v.

State, 143 So. 3d 335, 339 (Fla. 2014); Gay v. State, 607 So. 2d 545, 546 (Fla. 1st

DCA 1992).

      REVERSED and REMANDED.

B.L. THOMAS, RAY, and KELSEY, JJ., CONCUR.




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