Christopher Stonebraker v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
CHRISTOPHER STONEBRAKER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-0449
[January 7, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Frank Ledee, Judge; L.T. Case No. 19-013735-CF10A.
Robert David Malove and Hani Demetrious of The Law Office of Robert
David Malove, P.A., Fort Lauderdale, for appellant.
James 	Uthmeier, 	Attorney 	General, 	Tallahassee, 	and 	Pablo 	Tapia,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER , J.
The defendant appeals from his convictions and sentences for two
counts of sexual battery on a person less than twelve years old and three
counts of lewd and lascivious molestation on a person less than twelve
years old. 	On the defendant’s arguments challenging his convictions, we
affirm without further discussion. 	On the defendant’s argument that the
circuit court erred in denying his Florida Rule of Criminal Procedure
3.800(b)(2) motion contending that his concurrent thirty-year sentences
followed by lifetime probation on the three lewd and lascivious molestation
counts exceeded the statutory maximum, the state concedes error.
Applying de novo review, we agree with the state’s concession, and
reverse for resentencing on those three counts only. 	See Baker v. State,
349 So. 3d 443, 444 (Fla. 4th DCA 2022) (“Because a motion to correct a
sentencing error involves a pure issue of law, our standard of review is de
novo.”) (citation omitted).
Although the three lewd and lascivious molestation counts are second-
degree felonies punishable by up to fifteen years in prison, the defendant’s

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criminal punishment code scoresheet totaled 462 points and provided that
the defendant’s lowest permissible prison sentence (“LPS”) was calculated
to 325.5 months in prison, or 27.125 years. Accordingly, the circuit court
had two sentencing options on each lewd and lascivious molestation
count: a life sentence or a 325.5-month sentence. As section 921.0024(2),
Florida Statutes (2019), provides:
The permissible range for sentencing shall be the [LPS] up to
and 	including 	the 	statutory 	maximum, 	as 	defined 	in 	s.
775.082, for the primary offense and any additional offenses
before the court for sentencing. … If the [LPS] under the code
exceeds the statutory maximum sentence as provided in s.
775.082, the sentence required by the code must be imposed.
If the total sentence points are greater than or equal to 363,
the court may sentence the offender to life imprisonment.
§ 921.0024(2), Fla. Stat. (2019) (emphasis added); see also State v. Gabriel,
314 So. 3d 1243, 1246, 1248–49 (Fla. 2021) (“[U]nder section 921.0024(2),
the LPS is an individual minimum sentence where there are multiple
convictions subject to sentencing on a single scoresheet,” and “if the LPS
exceeds the statutory maximum penalty in section 775.082, the LPS is
both the minimum sentence and the maximum penalty for that offense.”).
Rigueiro v. State, 132 So. 3d 853 (Fla. 4th DCA 2013), is instructive.
There, the defendant was convicted of four sexual battery counts and
sentenced to forty years in prison on each count followed by five years of
sex offender probation. 	Id. at 854. 	The defendant’s criminal punishment
code 	scoresheet 	totaled 	506 	points 	and 	provided 	that 	his 	LPS 	was
calculated to be 358.5 months in prison, or 29.875 years. Id. In reversing
the defendant’s sentence, we held:
[T]he lowest permissible sentence did exceed the statutory
maximum 	of 	fifteen 	years 	for 	each 	of 	the 	second 	degree
felonies in this case. As well, the total sentencing points were
greater than 363. 	This left the sentencing court with the
option of life sentences or sentences of 358.5 months (29.875
years) in prison, the lowest permissible CPC sentence.
However, the trial court actually sentenced [the defendant]
to forty-year concurrent prison terms, followed by five years of
sex offender probation. 	This was an illegal sentence, as the
State has conceded in its response filed in this court.
Id.

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Likewise, in Baker, we held that because the defendant’s LPS of 28.3
years 	exceeded 	the 	statutory 	maximum 	on 	all 	counts, 	and 	the 	total
sentencing points were greater than 363, the sentencing court could not
impose concurrent forty-year terms on all counts. 349 So. 3d at 445. On
remand, we instructed the sentencing court to “sentence [the defendant]
to the calculated LPS of 28.3 years on all counts to be served concurrently,
because any other sentence, including a consecutive sentence, would be
greater than [the defendant’s] original sentence.” 	Id. (citing Rigueiro, 132
So. 3d at 854).
Here, the defendant’s LPS of 325.5 months exceeded the fifteen-year
statutory maximum sentence on the three lewd and lascivious molestation
counts. 	See § 800.04(5)(c)1., Fla. Stat. (2019) (listing lewd and lascivious
molestation on a victim less than twelve years of age by an offender less
than eighteen years of age as a second-degree felony); § 775.082(3)(d), Fla.
Stat. (2019) (setting the statutory maximum for a second-degree felony at
15 years). 	Accordingly, because the total sentencing points were greater
than 363, the circuit court had two sentencing options on those three
counts: 	a life sentence or a 325.5-month sentence. 	However, the circuit
court 	instead 	imposed 	concurrent 	thirty-year 	sentences 	followed 	by
lifetime probation on those three counts. This resulted in illegal sentences.
On remand, the circuit court must resentence the defendant to the
calculated LPS of 325.5 months on each of the three lewd and lascivious
molestation 	counts, 	“to 	be 	served 	concurrently, 	because 	any 	other
sentence, including a consecutive sentence, would be greater than [the
defendant’s] original sentence.” 	Baker, 349 So. 3d at 445. 	Moreover,
because the circuit court did not exercise its discretion to impose life
imprisonment, 	the 	circuit 	court 	cannot 	resentence 	the 	defendant 	to
lifetime probation on those three counts. 	See Cliatt v. State, 970 So. 2d
902, 902 (Fla. 5th DCA 2007) (“Because the trial court did not exercise its
discretion to impose life imprisonment, it could not impose a sentence in
which the total of 	the incarcerative term and the probationary term
exceeded the maximum sentence for a particular offense.”).
Affirmed in part, reversed in part, and remanded with directions.
LEVINE and K LINGENSMITH, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.