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

RICHARD WARREN VANZILE,                NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-1211

STATE OF FLORIDA,                             CORRECTED PAGES: pg 2
                                              CORRECTION IS UNDERLINED IN
      Appellee.                               RED
                                              MAILED: October 10, 2016
                                              BY: KMS
_____________________________/

Opinion filed October 10, 2016.

An appeal from an order of the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.

Michael R. Rollo, Pensacola, for Appellant.

Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant filed a rule 3.800(a) motion to withdraw his plea to a negotiated

sentence of lifetime sexual offender probation after five years’ imprisonment,

imposed following a conviction for attempted sexual battery on a victim less than
12 years of age, a first-degree felony. In that motion, Appellant correctly argues

that the sentence exceeds the 30-year statutory maximum for a first-degree felony

per sections 775.082 and 777.04(4)(b), Florida Statutes. The trial court denied the

motion and Appellant filed this appeal.

        In recognition of the State’s response to this Court’s Toler1 order, we affirm

the trial court’s order on appeal without prejudice to the Appellant’s timely filing

of a rule 3.850 motion seeking to withdraw his plea to this sentence, if he chooses

to do so. See Leavitt v. State, 810 So. 2d 1032 (Fla. 1st DCA 2002) (a defendant

cannot plead to an illegal sentence, even when it arises from a negotiated plea

agreement); Nedd v. State, 855 So. 2d 664 (Fla. 2d DCA 2003) (defendant needed

to raise a claim of an illegal sentence that arose out of a negotiated plea agreement

in a rule 3.850 motion because plea withdrawal was a potential consequence);

Haynes v. State, 106 So. 3d 481 (Fla. 5th DCA 2013) (defendant’s claim of an

illegal sentence must be raised in a rule 3.850 motion because he sought to

withdraw from his plea, and doing so was at his own peril because he risked a

greater sentence). If a rule 3.850 motion is brought by the Appellant, the State will

have the option to either agree to resentencing or to withdraw from the plea

agreement and proceed to trial on the original charge. Nedd; Bruno v. State, 837

So. 2d 521 (Fla. 1st DCA 2003).


1
    Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
                                             2
    As to the remaining claims, we affirm the trial court’s order of denial.

    AFFIRMED.

WOLF, BILBREY, and M.K. THOMAS, JJ., CONCUR.




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