ROBERT P. GAUSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that probation and incarceration cannot be imposed concurrently, requiring reversal of the sentence.
Robert P. Gause was convicted of aggravated battery and burglary and sentenced to fifteen years' probation on one count and six years' incarceration o…
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PER CURIAM.
Robert P. Gause appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800. Because Mr. Gause is sentenced to probation concurrent with incarceration, we must reverse.
Mr. Gause was convicted of aggravated battery with a firearm (count I) and first-degree burglary (count II). The trial court, sentenced him to fifteen years’ probation on count I and six years’ incarceration on count II. The sentences are scheduled to be served concurrently. The motion challenging this sentence raised other issues that were correctly resolved by the trial court, but the concurrent sentences are illegal.
It is well established that probation and incarceration cannot be imposed concurrently. Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994). In its response to this appeal, the state suggests that the term of probation should be consecutive and should be limited to nine years to avoid any possible double jeopardy issue on resentencing. We agree.
Reversed and remanded for resentencing on count I.
PARKER, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.
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Cited By
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Benjamin v. State, 705 So. 2d 126 (Fla. 2d DCA 1998)…njamin presumably continues to serve. The motion challenges the legality of imposing a probationary term concurrently with a sentence of incarceration. This is an issue which may be raised in a motion to correct illegal sentence. See Gause v. State, 673 So. 2d 925 (Fla. 2d DCA 1996). Moreover, it is well established that probation and incarceration cannot be imposed concurrently. See Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994). The trial court’s order fails to address this issue. Accordingly, we re…
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Hinkle v. State, 737 So. 2d 1152 (Fla. 2d DCA 1999)…he failure to include written reasons for departure requires a reversal for resentencing within the guidelines. [*1154] See State v. Colbert, 660 So. 2d 701, 702 (Fla.1996); Culver v. State, 727 So. 2d 278, 279 (Fla. 2d DCA 1999); State v. Campbell, 673 So. 2d 925, 925 (Fla. 2d DCA 1996). Accordingly, we reverse and remand for resentencing on Counts II and III within the 19972 sentencing guidelines. PARKER, C.J., and PATTERSON and DAVIS, JJ., Concur. . Hinkle is correct that this issue may be reviewed on di…
Authorities Cited
- Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994)