Mays v. State

We have for review Mays v. State, 693 So.2d 52 (Fla. 5th DCA 1997), based on conflict with Myers v. State, 696 So.2d 893 (Fla. 4th DCA 1997). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result in Mays as explained herein.

Albert Mays argued with a stranger on January 20, 1996, pulled a knife on him, and threatened to kill him. Mays was charged with and convicted of aggravated assault. His median recommended sentence under the sentencing guidelines was 67.8 months, and his recommended range was between 50.85 and 84.75 months. The statutory maximum sentence for the offense was 60 months. He was sentenced to 70 months, and the district court affirmed. Mays contends that because a portion of the recommended range did not exceed the statutory maximum, the court erred in sentencing him above the statutory maximum. We disagree.

Chapter 921, Florida Statutes, sets forth the process for calculating recommended sentences under the guidelines:

(2) Recommended sentences:

If the total sentence points are greater than 52, the sentence must be a state prison sentence calculated by total sentence points. A state prison sentence is calculated as follows:

State prison months = total sentence points minus 28.

The recommended sentence length in state prison months may be increased by up to, and including, 25 percent or decreased by up to, and including, 25 percent, at the discretion of the court.

§ 921.0014(2), Fla. Stat. (1995). Under this procedure, a sentencing court must: (1) determine the median recommended sentence, i.e., total sentence points minus 28; (2) establish the discretionary range, i.e., 25 percent increase and decrease from the median recommended sentence; and (3) select the actual sentence — i.e., the “true” recommended guidelines sentence — from within the range, absent a departure.

The interplay between the sentencing guidelines and the statutory máximums is simple. Prior to 1994, a court could not impose a guidelines sentence outside the statutory limits. The legislature, however, amended the guidelines, effective January 1, 1994, to provide that only departure sentences cannot exceed the statutory máxi-mums. The guidelines currently provide:

Sentences imposed by trial court judges under the 1994 revised sentencing guidelines on or after January 1, 1994, must be within the 1994 guidelines unless there is a departure sentence with written findings. If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure.

§ 921.001(5), Fla. Stat. (1995). Thus, under the current system, if the guidelines sentence — i.e., the “true” recommended guidelines sentence — exceeds the statutory maximum, the guidelines sentence must be imposed.

In the present case, the trial court properly calculated Mays’ median recommended sentence (i.e., 67.8 months) and recommended range (i.e., between 50.85 and 84.75 months) and selected a “true” recommended guidelines sentence within that range (i.e., 70 months). Although this guidelines sentence exceeded the statutory maximum (i.e., 60 months), the trial court was authorized via chapter 921 to impose the guidelines sentence. We find no error. We approve the result in Mays on this issue.

It is so ordered.

HARDING, C.J., and OVERTON and WELLS, JJ., concur.

PARIENTE, J., concurs in part and dissents in part with an opinion, in which KOGAN and ANSTEAD, JJ., concur.

. Section 775.082 sets forth maximum terms of imprisonment for various crimes. See § 775.082, Fla. Stat. (1995).

. See § 921.001(5), Fla. Stat. (1991) ("Sentences imposed by trial court judges must be in all cases within any relevant minimum and maximum sentence limitations provided by statute and must conform to all other statutory provisions.”).

. See ch. 93-406, § 5, at 2920, Laws of Fla.

. See also § 921.0014(2), Fla. Stat. (1995) (“If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence recommended under the guidelines must be imposed absent a departure.”).