RALPH EUGENE DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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SCHEB, Judge.
Ralph Eugene Davis appeals from a judgment and sentence for attempted sexual battery under Section 794.011(4)(e), Florida Statutes (1979). He also appeals the order revoking his probation on the basis of the judgment. We find no merit to Davis’ argument that the judgment was not supported by the evidence. The trial court erred, however, in imposing a sentence of five years imprisonment and twenty years probation. The maximum sentence for attempted sexual battery, a second degree felony, is fifteen years. §§ 775.082(3)(c), 777.04(4)(b), Fla.Stat. (1979). Thus, the total time in prison and on probation could not exceed fifteen years. State v. Holmes, 360 So. 2d 380 (Fla.1978); Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976).
Accordingly, we affirm the judgment and order but remand for the trial court to impose a new term of probation not exceeding ten years.
BOARDMAN, Acting C. J., and CAMPBELL, J., concur.
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Citator
Cited By
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Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990)…he maximum penalty provided by law, Williams v. State, 402 So. 2d 537 (Fla. 5th DCA 1981), nor may the total penalty of probation and incarceration exceed the statutory maximum. See McCray v. State, 517 So. 2d 770 (Fla. 2d DCA 1988); Davis v. State, 384 So. 2d 53 (Fla. 2d DCA 1980). Accordingly, this cause is remanded with instructions to allow credit for time served against the term of probation. Additionally, the appellant alleges and the State does not dispute that costs were imposed without notice. The…
Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)