LIVINGSTON MILBRY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Livingston Milbry appealed his sentence as a youthful offender for second degree grand theft, arguing that a six-year combination of four years imprisonment plus two years community control exceeded the five-year statutory maximum for the offense. The court agreed and reversed the sentence while affirming the conviction.
The court held that the Youthful Offender Act may not be invoked to impose a sentence exceeding the statutory maximum set for the offense. The six-year sentence was invalid and required resentencing.
[1] A sentence imposed under the Youthful Offender Act may not exceed the statutory maximum penalty for the underlying offense.
[2] The Youthful Offender Act is intended to provide more lenient sanctions, not to aggravate penalties.
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Join FLexlaw to unlock all legal intelligence“the Youthful Offender Act may not be invoked to impose a sentence which exceeds the statutory maximum set for the offense for which an accused stands convicted”
Establishes the core holding that youthful offender sentencing cannot exceed statutory maximums
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Join FLexlaw to unlock all legal intelligenceMilbry was convicted of second degree grand theft and sentenced as a youthful offender under Section 958.05, Florida Statutes, to four years imprisonm…
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PER CURIAM.
This is an appeal from an adjudication and sentence for the crime of second degree grand theft. The sole point on appeal is that the trial court erred in sentencing the defendant, as a youthful offender under Section 958.05, Florida Statutes (1983), to four years imprisonment plus two years of community control because this six-year combination of imprisonment and probation exceeds the statutory maximum of five years imprisonment for second degree grand theft. §§ 812.014(2)(b), 775.-082(3)(d), Fla.Stat. (1983). See State v. Holmes, 360 So. 2d 380 (Fla.1978); Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981); Corraliza v. State, 391 So. 2d 330 (Fla. 3d DCA 1980), pet. for review denied, 399 So. 2d 1141 (Fla.1981); Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979); Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). We agree and reverse the sentence herein.
This court is committed to the principle that the Youthful Offender Act [ch. 958, Fla.Stat. (1983) ] may not be invoked to impose a sentence which exceeds the statutory maximum set for the offense for which an accused stands convicted. Saunders v. State, 405 So. 2d 1037 (Fla. 3d DCA 1981); contra Dunlap v. State, 433 So. 2d 631 (Fla. 1st DCA 1983). The Act was obviously designed to impose more lenient sanctions on a youthful offender who meets the statutory requirements, not to aggravate the sanctions which would ordinarily apply.
The adjudication of guilt under review is affirmed; the sentence under review is reversed and the cause is remanded to the trial court for resentencing under the Youthful Offender Act to a term of imprisonment and community control which does not exceed a total of five years.
Affirmed in part; reversed in part.
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State v. Livingston Milbry, 476 So. 2d 1281 (Fla. 1985)…McDonald, justice. We have for review Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984), which directly and expressly conflicts with Dunlap v. State, 433 So. 2d 631 (Fla. 1st DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue here is whether a defendant may be sentenced as a youthful offender i…
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Eubanks v. State, 662 So. 2d 1360 (Fla. 3d DCA 1995)…tion 775.082(3)(d), Florida Statutes, this cause must be reversed and remanded for resentencing. E.g., Fla.R.Crim.P. 3.701(d)(10); State v. Holmes, 360 So. 2d 380, 383 (Fla.1978); Kline v. State, 642 So. 2d 1146 (Fla. 1st DCA 1994); Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984), opinion adopted, 476 So. 2d 1281, 1282 (Fla.1985); see also Fla.R.Crim.P. 3.701(d)(12) Commission Notes (1988) (“The total sanction (incarceration and probation) shall not exceed the term [*1361] provided by general law.”)- The t…
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Keast v. State, 472 So. 2d 855 (Fla. 3d DCA 1985)…80 (Fla. 2d DCA 1982); § 958.05(2), Fla.Stat. (1983). Therefore, we remand to the trial court with directions to modify accordingly the community control portion of the sentence. Affirmed as modified. . This court's opinion in Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984), does not apply to the case sub judice. In Milbry, the sentence imposed exceeded the maximum statutory penalty. While the sentence imposed herein is greater than what would have been imposed if the sentencing guidelines had been u…
Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979)
- White v. State, 391 So. 2d 330 (Fla. 3d DCA 1980)
- Marvin Lynn Dunlap/Donald Ray Griffis v. State, 433 So. 2d 631 (Fla. 1st DCA 1983)
- Bijolle v. State, 405 So. 2d 1037 (Fla. 3d DCA 1981)
- Mickey Saunders v. State, 405 So. 2d 1037 (Fla. 3d DCA 1981)