Franke v. State, 997 So. 2d 424 (Fla. 2d DCA 2008). · Go Syfert
Search
Franke v. State, 997 So. 2d 424 (Fla. 2d DCA 2008). Cases Citing This Book View Copy Cite
“he trial court could not have reclassified the offenses because the use of a firearm is an essential element of each of them.”
33 citation events (33 in the last 25 years) across 1 distinct court.
Strongest positive: Figueroa v. State (fladistctapp, 2012-03-30)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Figueroa v. State
Fla. Dist. Ct. App. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
he trial court could not have reclassified the offenses because the use of a firearm is an essential element of each of them.
discussed Cited "see" NATHAN S. THORNTON v. STATE OF FLORIDA (2×)
Fla. Dist. Ct. App. · 2019 · signal: see · confidence high
See Franke v. State, 997 So. 2d 424, 425 (Fla. 2d 1We are unpersuaded by and have found no support for the argument that Thornton is estopped from raising the issue because he withdrew a prior motion and stipulated that he would not bring the claim again unless the law allowing him to be sentenced to a combined ninety years in prison changed. -5- DCA 2008); McDuffie v. State, 946 So. 2d 99, 100 (Fla. 2d DCA 2006); see also Jordan v. State, 28 So. 3d 929, 930-31 (Fla. 3d DCA 2010) (reversing denial of rule 3.800(a) motion because sentence of sixty years was illegal where statute provided that t…
discussed Cited "see, e.g." Black v. State
Fla. Dist. Ct. App. · 2011 · signal: see also · confidence medium
See §§ 812.13(2)(a), 810.02(2)(b), Fla. Stat. (1996); see also Franke v. State, 997 So.2d 424, 425-26 (Fla. 2d DCA 2008) (holding that armed robbery and armed burglary cannot be reclassified to life felonies under section 775.087(1), Florida Statutes, because the use of a weapon or firearm is an essential element of each offense).
Retrieving the full opinion text from the archive…
Michael R. FRANKE, Appellant,
v.
STATE of Florida, Appellee.
2D08-299.
District Court of Appeal of Florida, Second District.
Oct 22, 2008.
997 So. 2d 424
Whatley.
Cited by 30 opinions  |  Published

[*425] WHATLEY, Judge.

Michael Franke appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse in part and affirm in part.

Franke was charged with four offenses alleged to have been committed on February 13, 1993. Only three of the offenses are at issue in the present appeal: attempted first-degree murder with a firearm, armed robbery, and armed burglary. After entering a negotiated plea, Franke was sentenced to fifty years' imprisonment on each of the three charges, with a three-year mandatory minimum on each charge for use of a firearm. See § 775.087(2), Fla. Stat. (1991). The sentences were imposed to run concurrently. Additionally, he was designated a habitual violent felony offender (HVFO) as to the armed robbery and armed burglary, and a fifteen-year mandatory minimum sentence was imposed for each charge. Franke did not file a direct appeal of his judgment and sentence. In the present case he filed a rule 3.800(a) motion raising several claims, all of which the postconviction court denied.

Franke first alleged that the sentence for the attempted first-degree murder with a firearm is illegal because the sentencing options for a life felony[1] at the time of his offense were either life imprisonment or a maximum term of forty years. Franke is correct. See § 775.082(3)(a), Fla. Stat. (1991) (listing these options); see also Stephens v. State, 627 So.2d 543, 544 (Fla. 2d DCA 1993) ("When the trial court opts for a term of years instead of a life sentence [for a life felony], it may not impose a sentence longer than forty years."). Moreover, not even a plea agreement can support an illegal sentence. McDuffie v. State, 946 So.2d 99, 100 (Fla. 2d DCA 2006). Because the postconviction court erred in denying this claim, we reverse for the court to resentence Franke for the count of attempted first-degree murder with a firearm; the sentence may not exceed forty years.

Franke alleged the same claim with respect to his sentences for armed robbery and armed burglary; that is, he argued that the fifty-year sentences are illegal[*426] because they were reclassified to life felonies due to the use of a firearm, § 775.087(1)(a), and thus subject to either life imprisonment or a forty-year maximum sentence. In fact, however, the sentencing documents reflect no reclassification. Indeed, the trial court could not have reclassified the offenses because the use of a firearm is an essential element of each of them. See § 775.087(1); State v. Tripp, 642 So.2d 728, 730 n. 2 (Fla. 1994) (attempted armed robbery); Harris v. State, 766 So.2d 403, 404 (Fla. 2d DCA 2000) (armed burglary). Rather, the sentences were imposed based on the statutory definitions of each offense as a first-degree felony punishable by life, §§ 812.13(2)(a), § 810.02(b), which is distinct from a life felony, see James v. State, 775 So.2d 347, 348 (Fla. 1st DCA 2000) (citing Burdick v. State, 594 So.2d 267, 268-69 (Fla.1992)). We therefore affirm the postconviction court's denial of this claim.

Franke raised an additional claim with respect to the armed robbery and armed burglary charges: that because in his view they are life felonies, they were not subject to habitualization. As just noted, the two offenses are first-degree felonies punishable by life. A first-degree felony is subject to habitualization. § 775.084(4)(a)(1); see also Harris v. State, 593 So.2d 301, 301 (Fla. 2d DCA 1992) (noting that a "first degree felony, no matter what the punishment imposed by the substantive law that condemns the particular criminal conduct involved, is still a first degree felony and subject to enhancement by Section 775.084(4)(a)(1), Florida Statutes" (citation and internal quotation marks omitted)). Therefore, there was no error as to habitualization. We affirm the postconviction court's denial of this claim.

Finally, Franke claims that the "general notice of intent" of habitualization served on him was constitutionally infirm because it did not specify which category of habitualization the State would be seeking. The postconviction court properly denied this claim, and we affirm. See Judge v. State, 596 So.2d 73, 77-78 (Fla. 2d DCA 1991) (concluding that the issue of whether there was a failure to give notice of intent to seek a habitual offender sanction is not properly raised in a rule 3.800(a) motion).

In sum, we reverse only as to the sentence imposed on the count of attempted first-degree murder with a firearm.

Reversed in part and remanded with instructions; affirmed in part.

FULMER and LaROSE, JJ., Concur.

1 Attempted first-degree murder, §§ 782.04(1)(a), 777.04(1), (4)(a), with a firearm is a life felony due to the firearm enhancement of section 775.087(1)(a). See Strickland v. State, 437 So.2d 150, 152 (Fla. 1983).