JAMES ALLEN JOYCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
ON REHEARING
We withdraw our opinion issued on August 5, 1981 in this cause. The Public Defender’s motion to withdraw is granted and appellant’s conviction is affirmed. Although appellant’s sentence is in violation of Villery v. Florida Parole & Probate Commission, 396 So. 2d 1107 (Fla. 1981), since appellant did not make application to have it corrected, we will not remand for resentencing. As so aptly pointed out by the Public Defender, under Villery, appellant may, on resentencing, be subject to a longer term of imprisonment than he is presently serving. Accordingly, appellant should be afforded the option of declining correction of his sentence.
Nothing in this opinion prevents appellant from filing a motion to correct an illegal sentence pursuant to Rule 3.800, Florida Rules of Criminal Procedure.
AFFIRMED.
DOWNEY, MOORE and HERSEY, JJ., concur.
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Adams v. State, 414 So. 2d 1079 (Fla. 1st DCA 1982)…oes not exceed the entire term of fifteen years previously imposed. Williams v. State, 405 So. 2d 436, 437 (Fla. 1st DCA 1981); see Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981); Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981); Joyce v. State, 404 So. 2d 850 (Fla. 4th DCA 1981). BOOTH and WENTWORTH, JJ., concur. SHAW, J., dissents in part and concurs in part with written opinion.…
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Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982)…1982 FLW 1109]; Jackson v. State, 412 So. 2d 384 (Fla. 5th DCA 1982); Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982); Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981); Williams v. State, 405 So. 2d 436, 437 (Fla. 1st DCA 1981); Joyce v. State, 404 So. 2d 850 (Fla. 4th DCA [*1124] 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). Likewise, the point that the infor-mations charging Lowery with robbery did not set forth the element of mental intent — that Lowery intended to permanently deprive th…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)