DAVID SORIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence combining incarceration and probation cannot exceed the statutory maximum for the offense.
David Soria was convicted of two counts of DUI resulting in serious bodily injury and received consecutive sentences. He appealed the split sentence f…
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PETERSON, Judge.
David Soria was convicted in case number CF-90-1018 of two counts of driving under the influence resulting in serious bodily injury. He appeals the split sentence imposed for conviction of the second count. He is also dissatisfied with his scoresheet and the orders of restitution totaling $249,999.36. We find merit only in Soria’s complaint that his sentence for the second count of DUI resulting in serious bodily injury is illegal.
Soria was sentenced to a five-year prison term for the first count of DUI resulting in serious bodily injury. For the second count, he was sentenced to five years in prison consecutive to the term in count one, followed by seven years’ probation. These offenses are each punishable by a maximum of five years in prison. Sections 316.193(3)(c)2; 775.082(3)(d), Fla. Stat. (1989). The state agrees that the total term of years imposed in a sentence combining incarceration and probation cannot exceed the statutory maximum. State v. Holmes, 360 So. 2d 380 (Fla.1978). A guidelines sentence does not affect this rule. Bernard v. State, 571 So. 2d 560 (Fla. 5th DCA 1990); § 921.001(5), Fla.Stat. (1989).
We affirm the judgments and sentences except that the sentence on count two in case number CF-90-1018 is vacated. We remand for resentencing on that count.
AFFIRMED, in part; VACATED, in part; REMANDED.
HARRIS and DIAMANTIS, JJ., concur.
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Gonzales v. State, 816 So. 2d 720 (Fla. 5th DCA 2002)…rs.3 When a defendant is sentenced to a term in prison followed by probation, the combined times must not exceed the statutory maximum. State v. Holmes, 360 So. 2d 380 (Fla.1978); Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998); Soria v. State, 584 So. 2d 1130 (Fla. 5th DCA 1991). Thus, the sentence Gonzales received was illegal because the combined times were thirty years. [*722] The state argues that this sentence was part of a plea bargain and that Gonzales agreed to it. However, a defendant cannot be…
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Altas Allen v. State, 666 So. 2d 259 (Fla. 4th DCA 1996)…trial court’s revocation of Allen’s community control, but hold that the resultant sentence of twenty-two years in prison, followed by ten years’ probation, exceeds the thirty-year statutory maximum (fifteen years on each count). See Soria v. State, 584 So. 2d 1130 (Fla. 5th DCA 1991); see also §§ 794.011(4)(c) and 775.082, Fla. Stat. (1993). Therefore, since it is unclear whether the trial court intended to revoke Allen’s probation as well, we remand with directions that the trial court either enter an order…
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Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998)…tence. However, appellant correctly points out that the probation order suggests appellant was sentenced to 20 years probation on all counts, which would result in sentences in excess of the statutory maximum on the other counts. See Soria v. State, 584 So. 2d 1130, 1131 (Fla. 5th DCA 1991). In all other respects, we affirm. GLICKSTEIN and GROSS, JJ., and GOLDENBERG, RENEE, Associate Judge, concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Bernard v. State, 571 So. 2d 560 (Fla. 5th DCA 1990)