MARIAN MCCRAE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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COWART, Judge.
We have carefully reviewed the record on appeal and all points argued in appellant’s well-written brief and find no error except as to point 7 which challenges the condition of probation requiring two years imprisonment. Subsequent to this trial and the probation order herein, the Florida Supreme Court in Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981), held incarceration for more than one year as a condition of probation under section 948.03(2), Florida Statutes (1979), to be illegal. Therefore, we affirm the judgments of conviction but reverse the “sentences” and remand for correction as provided in Villery. Any resentencing should avoid the prohibition of general sentences stated in Dorfman v. State, 351 So. 2d 954 (Fla.1977), and applied to probation orders in Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979). Of course, the defendant must be present at the resentencing. Fla.R. Crim.P. 3.180(a)(9).
JUDGMENT AFFIRMED; SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING.
COBB and FRANK D. UPCHURCH, JJ., concur.
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Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983)…in resentencing him in his absence. Florida Rule of Criminal Procedure 3.180(a)(9) provides that the defendant shall be present at the “imposition of sentence.” The state apparently acknowledges, pursuant to this court’s decision in McRae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981), that resentencing under Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. 2d DCA 1981), requires the presence of the defendant.2 The state, however, contends that because defense counsel was present and o…
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Cervantes v. State, 415 So. 2d 105 (Fla. 3d DCA 1982)…396 So. 2d 1107 (Fla.1980), and can, therefore, be entered, as here, upon multiple convictions. We recognize that our holding here is in conflict with decisions rendered by two of our distinguished sister district courts of appeal, McCrae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981); Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981); German v. State, 382 So. 2d 146 (Fla. 4th DCA 1980); Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979) and regret that we cannot follow these decisions because, in our view,…
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Scott v. State, 439 So. 2d 222 (Fla. 4th DCA 1983)…which language supports the State’s position to the effect that it was not necessary for Scott to be present. Regardless, Thacker v. State, 185 So. 2d 202 (Fla. 3d DCA 1966); Walker v. State, 284 So. 2d 415 (Fla. 2d DCA 1972); and McCrae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981), have held that it is fundamentally necessary for a defendant to be present when being resen-tenced. Even though these opinions do not mention the contrary language contained in Rule 3.850, supra, and its predecessor, we believe…
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- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979)