Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROBERT RYAN, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1572 April 13, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Mark F. Carpanini, Judge. Robert Ryan, pro se. Ashley Moody, Attorney General, Tallahassee, and Jonathan Tannen, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. Robert Ryan appeals the postconviction court's order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part, reverse in part, and remand for resentencing. Background In 1993, Ryan pleaded nolo contendere in case number 92-CF- 5097 to three charges and received concurrent sentences, the longest being for twenty-seven years' imprisonment followed by fifteen years' probation for armed robbery. While imprisoned, Ryan was charged in case number 94-CF-1189 with armed robbery, armed kidnapping, and armed sexual battery. He pleaded nolo contendere and the trial court sentenced him on all counts to concurrent sentences of thirty-five years' imprisonment followed by fifteen years' probation. In October 2016, the trial court revoked Ryan's probation in both cases and resentenced him to fifty years' imprisonment on all four convictions—the armed robbery charge from case number 92- CF-5097 and the three charges from case number 94-CF-1189— with the sentences in case number 94-CF-1189 to run concurrently. In February 2021, Ryan filed the instant motion to correct illegal sentence challenging his original probationary split sentences 2 in both cases and his current sentences imposed upon the revocation of his probation. He alleged the sentences are illegal because they exceed the statutory maximum pursuant to section 775.082(3)(a), (b), Florida Statutes (1991). He argued that, under the sentencing regime applicable to him, the life felonies are limited to forty years' imprisonment and the first-degree felonies punishable by life are limited to thirty years' imprisonment. The postconviction court summarily denied Ryan's motion, finding that the sentences were legal.1 Analysis "A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief . . . ." Fla. R. 1 The State has conceded error regarding Ryan's current sentences for armed kidnapping and armed sexual battery in case number 94-CF-1189, but has requested that we remand without prejudice to its right "to raise any procedural bars that may be supported by the record, including that the motion should be dismissed as successive." Because the postconviction court's order did not deny the motion as successive or otherwise mention the previous motions, and the State has cited no authority that supports its request, we decline to do so. 3 Crim. P. 3.800(a)(1). A sentence is illegal within the meaning of rule 3.800(a) if it imposes a "punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances." Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) (quoting Blakley v. State, 746 So. 2d 1182, 1187 (Fla. 4th DCA 1999)). Ryan's original sentences are no longer in effect because his probation was revoked, and the trial court imposed new sentences. See § 948.06(1), Fla. Stat. (1991) (stating that if probation is revoked, "the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control"); Shields v. State, 296 So. 3d 967, 972 (Fla. 2d DCA 2020) ("And as we have shown, a sentencing after a revocation of probation is, for all intents and purposes, just a resentencing on the original offense."). Accordingly, this opinion addresses only Ryan's current sentences. In case number 94-CF-1189, Ryan was convicted of armed kidnapping. Kidnapping is a "felony of the first degree, punishable 4 by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084." § 787.01(2), Fla. Stat. (1991). However, the use of a firearm enhanced the kidnapping offense to a life felony. See § 775.087(1)(a), Fla. Stat. (1991). Pursuant to section 775.082, a life felony committed after October 1, 1983, was punishable "by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years." § 775.082(3)(a). Therefore, "[w]hen a court opt[ed] for a term of years instead of a life sentence . . . it [could] not impose a sentence longer than forty years." Kellar v. State, 712 So. 2d 1133, 1133 (Fla. 1st DCA 1998). Accordingly, the fifty-year sentence for armed kidnapping is illegal. See Griffin v. State, 934 So. 2d 614, 615 (Fla. 4th DCA 2006). Similarly, Ryan's sentence in case number 94-CF-1189 for armed sexual battery is illegal. Ryan was convicted of armed sexual battery, "a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115." § 794.011(3), Fla. Stat. (Supp. 1992). As discussed above, pursuant to section 775.082, a life felony committed after October 1, 1983, was punishable "by a term of imprisonment for life or by a term of imprisonment not 5 exceeding 40 years[.]" § 775.082(3)(a). Accordingly, the fifty-year sentence for armed sexual battery is an illegal sentence because the trial court imposed a sentence for a term of years and therefore could not exceed forty years. See Kellar, 712 So. 2d at 1133. We affirm the postconviction court's order insofar as it concluded that Ryan's fifty-year sentences for armed robbery in both cases are legal. Robbery with a firearm is a "felony of the first- degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084." § 812.13(2)(a), Fla. Stat. (Supp. 1992). Therefore, a fifty-year sentence for armed robbery is permissible. See Franke v. State, 997 So. 2d 424, 426 (Fla. 2d DCA 2008). Accordingly, we reverse in part and direct the trial court on remand to resentence Ryan to a legal sentence for armed kidnapping and armed sexual battery in case number 94-CF-1189. In all other respects, the order on appeal is affirmed.2 Affirmed in part, reversed in part, and remanded. 2 Ryan's Eighth Amendment challenge to the applicable sentencing statutes is not cognizable in a rule 3.800(a) motion. See Thomas v. State, 778 So. 2d 429, 430 (Fla. 5th DCA 2001). 6 LaROSE, LUCAS, and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 7