DERRICK B. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
DERRICK B. SMITH, APPELLANT,
STATE OF FLORIDA, APPELLEE
528 So. 2d 1344
Florida District Court of Appeal, Second District (1988)
Positive Treatment
Cited by 1 case
Opinion of the Court
FRANK, Judge.
The defendant appeals from his sentence for second degree grand theft, a felony of the third degree, in Case No. CRC 84-6130 CFANO, which the state concedes was erroneously imposed in excess of the statutory maximum of five years. See §§ 812.-014(2)(b), 775.082, Fla.Stat. (1985). The defendant also filed a timely motion to correct sentence under Florida Rule of Criminal Procedure 3.800, but the trial court apparently never ruled upon this motion.
Accordingly, we vacate the sentence under review and remand for resentencing within the statutory maximum, after consideration of the defendant’s Rule 3.800 motion.
RYDER, A.C.J., and DANAHY, J., concur.
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Cooper v. State, 716 So. 2d 823 (Fla. 5th DCA 1998)…actions giving rise to the motion are not done intentionally so as to provoke the defendant into requesting a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982); Thomason, 620 So. 2d at 1237; State v. Butler, 528 So. 2d 1344, 1345 (Fla. 2d DCA 1988); Duncan v. State, 525 So. 2d 938, 940-41 (Fla. 3d DCA 1988). Here, the record supports the trial judge’s finding that while the misstatement was error, the testimony was not intentionally elicited, thus not preventing a retr…