Fernandez v. State
Fernandez v. State
Opinion of the Court
Waldo Fernandez appeals the postcon-viction court’s summary dispositions of his October 24, 2013, and his January 7, 2014, motions to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of Mr. Fernandez’s January 2014 motion without comment. However, we reverse the dismissal of his October 2013 motion and remand for resentencing.
Mr. Fernandez pleaded no contest to one count of aggravated battery with a deadly weapon. In exchange for his plea, Mr. Fernandez’s counsel announced that a negotiated disposition had been arranged in which he would be sentenced to five years in prison followed by five years of probation. However, Mr. Fernandez requested deferred sentencing so that he could get his affairs in order. In order to effect the deferred sentencing, the trial court sentenced Mr. Fernandez to ten years’ probation with five years’ state prison as a special condition of probation.
The State .properly concedes that Mr. Fernandez’s sentence is illegal. Section 948.03(2), Florida Statutes (2010), provides that if the court “imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days.” Additionally, the statute requires that incarceration as a condition of probation must be completed in a county facility, a probation or restitution center, or a community residential facility. Id. Therefore, the sen
We reverse the postconviction court’s order denying Mr. Fernandez’s October 2013 rule 3.800(a) motion and remand for resentencing to effectuate the plea agreement. Mr. Fernandez has a right to be present and to be represented by counsel at his resentencing. See Acosta v. State, 46 So.3d 1179, 1180 (Fla. 2d DCA 2010).
Affirmed in part, reversed in part, and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.