KENNETH LEON BALDWIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must receive credit for time served against a probationary sentence, and costs imposed without notice must be stricken.
Appellant was convicted of battery and sentenced to probation but denied credit for jail time served. Costs were also imposed without notice.…
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GOSHORN, Judge.
Appellant was convicted of battery, a first degree misdemeanor. The trial judge placed him on probation for one year but refused to allow the appellant credit for 198 days served in the county jail awaiting trial.
Section 775.082(4)(a), Florida Statutes (1987) provides that the maximum penalty for a first degree misdemeanor is imprisonment for 1 year. The term of probation cannot exceed the 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 imposition of costs is therefore stricken. Mays v. State, 519 So. 2d 618 (Fla.1988).
Conviction AFFIRMED; sentence MODIFIED and REMANDED with instructions.
COWART and PETERSON, JJ., concur.
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Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990)…onies. The statutory maximum sentence for a second degree felony is fifteen years, § 775.082(3)(e), Fla.Stat. (1989). Therefore the combined penalty of twenty years for each of the four second degree felonies is illegal. See, e.g., Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990) (total penalty of probation and incarceration cannot exceed statutory maximum); Johnson v. State, 533 So. 2d 927 (Fla. 5th DCA 1988) (sentence of three months incarceration followed by five years probation is illegal sentence sin…
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ARCH v. State, 572 So. 2d 1017 (Fla. 2d DCA 1991)…or grand theft, a third-degree felony, is five years. § 775.082(3)(d), Fla.Stat. (1987). Therefore, the combined sentences of prison and probation for each third-degree felony exceeded the statutory maximum and are illegal. [*1018] Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990); Jones v. State, 474 So. 2d 911 (Fla. 2d DCA 1985). We reject the state’s argument that no harmful sentencing error has occurred because the appellant’s burglary convictions carry maximum fifteen-year sentences and, consequently…
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Williamson v. State, 687 So. 2d 850 (Fla. 5th DCA 1997)…ither in accordance with Williamson’s plea agreement, or if the trial court does not sentence Williamson pursuant to the agreement, to permit him to withdraw his plea. See Hooks v. State, 613 So. 2d 607 (Fla. 3d DCA 1993); see also Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990). Williamson also argues that it was error to impose restitution for the victim’s parents’ or guardian’s counseling expenses. The state properly concedes error. See Gluesenkamp v. State, 636 So. 2d 1367, 1368 (Fla. 1st DCA 1994)…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- McCRAY v. State, 517 So. 2d 770 (Fla. 2d DCA 1988)
- Williams v. State, 402 So. 2d 537 (Fla. 5th DCA 1981)
- Davis v. State, 384 So. 2d 53 (Fla. 2d DCA 1980)