COREY A. EUBANKS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Concurrent split sentences of five years imprisonment plus one year probation for third-degree felonies exceeded the statutory maximum under Fla. Stat. § 775.082(3)(d) and were reversed for resentencing.
A sentence combining five years imprisonment and one year probation exceeds the statutory maximum for third-degree felonies and is illegal.
[1] When calculating whether a sentence exceeds a statutory maximum, the total sanction of both incarceration and probation must be considered together, not incarceration alo…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The total sanction (incarceration and probation) shall not exceed the term provided by general law.”
Commission Notes to Fla.R.Crim.P. 3.701(d)(12) establishing that probation must be included in calculating whether a sentence exceeds statutory maximums.
Appellant Eubanks pled guilty to four counts of third-degree felonies and received four concurrent split sentences of five years imprisonment followed…
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PER CURIAM.
By way of a motion to correct an illegal sentence brought pursuant to Florida Rule of Criminal Procedure 3.800, appellant Corey Eubanks challenges the validity of four concurrent split sentences of five years imprisonment followed by one year probation, pronounced after appellant pled guilty to four counts of various third degree felonies. No enhanced penalty was sought by the State or imposed by the court, despite appellant’s 60 prior felony convictions. Because this sentence exceeds the five-year maximum provided by section 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 provided by general law.”)- The trial court is further directed to clarify whether this sentence is to run concurrent with or consecutive to time being served by appellant at the time of his original sentencing.
Reversed and remanded for proceedings consistent herewith.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bover v. State, 671 So. 2d 828 (Fla. 3d DCA 1996)…ers 91-38173, 92-15536, and 92-15712 for third degree felonies was illegal where it exceeded the five year statutory maximum for state supervision. § 775.082(3)(c), Fla.Stat. (1993); Rule 3.701(d)(10) Fla.R.Crim.P.; see also, e.g., Eubanks v. State, 662 So. 2d 1360 (Fla. 3d DCA 1995).2 Since appellant has apparently com [*830] pleted his five year prison term imposed for these three cases, we remand with instructions that the additional five year probationary sentence and affidavit of violation filed pursuant…
Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- State v. Livingston Milbry, 476 So. 2d 1281 (Fla. 1985)
- Livingston Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984)
- Kline v. State, 642 So. 2d 1146 (Fla. 1st DCA 1994)