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Chad A. BUTLER, Appellant, v. STATE of Florida, Appellee.

CASE NO. 1D17–0764

Decided: December 21, 2017

Chad A. Butler, pro se, Appellant. Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.

The State charged Chad Butler with felony battery, false imprisonment, and criminal mischief. The first two charges were third-degree felonies, and the last was a second-degree misdemeanor. As part of a plea agreement, Butler pleaded no contest to all three in exchange for a sentence of eighteen months' prison followed by five years' probation.1 He now appeals the trial court's denial of his rule 3.800 motion, arguing that his sentences were illegal because they exceeded the statutory limit. But he is not entitled to the relief he seeks, so we affirm.

Butler is correct on several points. He correctly notes that the longest permissible sentence for a third-degree felony is five years. § 775.082(3)(e), Fla. Stat. (2015). With a split sentence (incarceration followed by probation) the total time cannot exceed five years. See Darling v. State, 886 So.2d 417, 418 (Fla. 1st DCA 2004). And Butler is right that trial courts cannot impose sentences exceeding statutory limits, even if the sentences follow negotiated plea agreements. See Costin v. State, 46 So.3d 96, 97 (Fla. 1st DCA 2010);  Darling, 886 So.2d at 418. Most importantly, Butler is correct that the trial court's written orders impermissibly imposed separate, identical sentences of eighteen months' prison plus five years' probation on each felony count.2

But we cannot agree with Butler that he is entitled to a new sentence eighteen months shorter than what he agreed to and received. At the time of his agreement, Butler faced a maximum total sentence of eleven years' incarceration:  two consecutive five-year sentences for the felonies and one year for the misdemeanor. See § 775.082(3)(e), (4)(a), Fla. Stat. (2015). His negotiated agreement was far below that maximum. Although the trial court could have (and should have) structured the sentences to comply with both the statutory limits and the plea agreement by using shorter, consecutive sentences, its failure to do so does not mean we must reduce Butler's sentence to less than he bargained for. Cf. Shanks v. State, 429 So.2d 1366, 1367 (Fla. 1st DCA 1983) (affirming denial of motion to vacate judgment and sentence arising from negotiated plea agreement because “it affirmatively appears from the record that the defendant was sentenced to exactly that for which he bargained”). Had the trial court properly structured the sentences, Butler would face the same total sentence he agreed to—the same total sentence he faces now—and there would be no question about its legality. Yet Butler's rule 3.800 motion did not ask the trial court to restructure his sentence by imposing consecutive sentences, a restructuring that would offer Butler little practical benefit. See Manning v. Tunnell, 943 So.2d 1018, 1020 (Fla. 1st DCA 2006) (recognizing general rule that an appellate court cannot address claims that were not raised below). What he sought instead was a reduced sentence, a sentence less than what the law allows and less that what he and the State agreed to. He is not entitled to that relief.



1.   The written agreement called for time served for the misdemeanor. It also required Butler to pay restitution, complete anger management counseling, and apologize to his victim.

2.   The court orally pronounced one total sentence of eighteen months' prison and five years' probation, making no distinction between the two felony counts. This, notwithstanding the requirement “[a] sentence must be imposed for each offense.” Fla. R. Crim. P. 3.701(d)(12);  see also Plummer v. State, 935 So.2d 35, 37 (Fla. 1st DCA 2006) (citing Fla. R. Crim. P. 3.701(d)(12) and directing that “[o]n remand, the trial court must announce a separate sentence on each count”).



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