IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ORANGE COUNTY, FLORIDA,
Petitioner,
v. Case No. 5D15-3140
STATE OF FLORIDA AND KEVIN
ROBERT MCQUEENY-GONZALEZ, ETC.,
Respondents.
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Opinion filed March 4, 2016
Petition for Certiorari Review of
Decision from the Circuit Court
for Orange County,
Alan S. Apte, Judge.
Scott Shevenell, Assistant County
Attorney, Orlando, for Petitioner.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Wesley Heidt,
Assistant Attorney General, Daytona
Beach, for Respondent, State of
Florida.
Robert Wesley, Public Defender,
and Matthew Eric Baker, Assistant
Public Defender, Orlando, for
Respondent, Kevin Robert
McQueeny-Gonzalez.
PALMER J.
Orange County, Florida (Orange County) filed the instant petition requesting a writ
of certiorari, seeking the quashal of a sentencing order. Because the sentencing court
erred in entering a county jail sentence that exceeded one year, we grant the petition,
quash the sentencing order, and remand for re-sentencing.
Kevin Robert McQueeny-Gonzalez was convicted of committing burglary of a
dwelling with an assault or a battery, a first-degree felony. § 810.02(2)(a), Fla. Stat.
(2011). The trial court sentenced him to 750 days in the Orange County Jail, with credit
for 386 days of time-served followed by two years of community control. Orange County
filed a motion challenging this sentence, asserting that the defendant should be serving
his sentence in the Department of Corrections, not in the County Jail, because his
sentence exceeds one year. See §§ 922.051; 775.08(1), Fla. Stat. (2014). The trial court
denied the motion, and the County then filed the instant petition.1
To be entitled to receive certiorari relief, the County “must demonstrate that the
contested order constitutes '(1) a departure from the essential requirements of the law,
(2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected
on postjudgment appeal.'" Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ.
Enters., 99 So. 3d 450, 454 (Fla. 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc.,
889 So. 2d 812, 822 (Fla. 2004)).
Section 775.08(1) of the Florida Statues defines a felony as being “any criminal
offense that is punishable under the laws of this state, or that would be punishable if
1
A certiorari petition is the proper appellate remedy, as the County was not a party
to the judgment and sentence, but was adversely affected by it. See Dade Cnty v. Baker,
258 So. 2d 511, 512-14 (Fla. 3d DCA 1972) (Carroll, J., dissenting), adopted by Dade
Cnty v. Baker, 265 So. 2d 700, 701 (Fla. 1972); Dep’t of Corr. v. Harrison, 896 So. 2d 868
(Fla. 5th DCA 2005)); Dep’t of Corr. v. Grubbs, 884 So. 2d 114 (Fla. 2d DCA 2004).
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committed in this state, by death or imprisonment in a state penitentiary. . . . A person
shall be imprisoned in the state penitentiary for each sentence which . . . exceeds 1 year.”
(internal quotation marks omitted). Section 922.051 provides:
Imprisonment in county jail, term of 1 year or less
When a statute expressly directs that imprisonment be in a
state prison, the court may impose a sentence of
imprisonment in the county jail if the total of a prisoner’s
cumulative sentences is not more than one year.
It is not the effective amount of time that a defendant will actually spend incarcerated after
receiving credit for time-served that controls the legality of a sentence, but instead, the
actual length of the sentence propounded by the trial court. Dade County v. Baker, 258
So. 2d 511,512-14 (Fla. 3d DCA 1972) (Carroll, J., dissenting), adopted by Dade County
v. Baker, 265 So. 2d 700, 701 (Fla. 1972). As such, the defendant’s sentence is illegal
because no judge is authorized to sentence a defendant on a felony conviction to 750
days in the County Jail.
Accordingly, the trial court’s sentencing order is quashed and this matter is
remanded to the trial court for the imposition of a legal sentence. Since the defendant
was sentenced as a result of a negotiated plea, under Dade County, the defendant must
be given the opportunity to withdraw his plea, if he so desires.
Petition GRANTED; Order QUASHED; Cause REMANDED.
EVANDER and WALLIS, JJ., concur.
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