DONALD S. BALDWIN, APPELLANT(S),
v.
STATE OF FLORIDA, APPELLEE(S)
THE COURT:
Upon consideration of Appellant’s Motion for Rehearing, it is
ORDERED that the motion is granted, and the prior opinion filed October 18,1995 is withdrawn. The attached opinion is substituted therefore.
PER CURIAM.
Donald S. Baldwin seeks rehearing of our opinion which affirmed his sentence for the crime of second-degree murder with a firearm. Baldwin’s motion has merit and we withdraw our prior opinion and reverse and remand this case for resentencing. The sentencing transcript demonstrates that although Baldwin was initially sentenced to life imprisonment, suspended after twenty-five years, followed by life probation, that legal sentence was withdrawn later in the proceedings and Baldwin was then sentenced to a specified term of twenty-five years followed by life probation. Baldwin correctly asserts that such a sentence is illegal because it exceeds the statutory maximum of forty years. See, e.g., Keltner v. State, 650 So. 2d 1066 (Fla. 2d DCA 1995); Dyer v. State, 629 So. 2d 285 (Fla. 5th DCA 1993).
Accordingly, we reverse and remand this ease to the trial court for resentencing.
PATTERSON, A.C.J., and QUINCE and WHATLEY, JJ., concur.
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Baldwin v. State, 753 So. 2d 573 (Fla. 2d DCA 1999)…PATTERSON, Chief Judge. Donald Baldwin appeals for the third time his judgment and sentence for second-degree murder with a firearm. See Baldwin v. State, 700 So. 2d 95 (Fla. 2d DCA 1997); Baldwin v. State, 666 So. 2d 240 (Fla. 2d DCA 1996). In this appeal following his second resentencing, Baldwin argues that the trial court erred in enhancing the charge from a first-degree felony to a life felony for the use of a firearm because the use of a firearm was an element…
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Nanivette Rodriguez v. State, 768 So. 2d 1234 (Fla. 5th DCA 2000)…to do something that is beyond their control or ability is an illegal condition and its violation is not a violation of probation. Soto v. State, 727 So. 2d 1044 (Fla. 2d DCA 1999); Trapp v. State, 711 So .2d 138 (Fla. 4th DCA 1998); Brown v. State, 666 So. 2d 240 (Fla. 5th DCA 1996); Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993). We agree with Rodriguez that the court’s order giving alternatives to obtain a GED was valid. But the probation officer’s transformation of it requiring Rodriguez to get a…
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Authorities Cited
- Dyer v. State, 629 So. 2d 285 (Fla. 5th DCA 1993)
- Keltner v. State, 650 So. 2d 1066 (Fla. 2d DCA 1995)