KEVIN BENJAMIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probationary term cannot be imposed concurrently with a sentence of incarceration, and the trial court erred in failing to address this issue.
Benjamin pleaded nolo contendere to felonies and a misdemeanor and received a suspended sentence with probation. He filed a motion to correct an illeg…
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PER CURIAM.
Kevin Benjamin appeals the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Benjamin’s motion sets forth several grounds for relief, only one of which may have merit. We affirm in part, reverse in part, and remand for further proceedings.
Benjamin pleaded nolo contendere to three third-degree felonies and a misdemeanor. He was sentenced on October 26, 1996, to a total sentence of eight years’ incarceration, all sentences suspended. The sentences in this case were to run concurrently with a Control Release violation, number 99-72583, which Benjamin 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 reverse the order denying relief to Benjamin as to this issue only. On remand, the trial court may again deny Benjamin’s claim and attach portions of the record which refute it, or the court may resen- tenee Benjamin. We refer the trial court to Griffin v. State, 517 So. 2d 669 (Fla.1987), in the event of resentencing.
Affirmed in part, reversed in part, and remanded for further proceedings.
BLUE, A.C.J., and FULMER and NORTHCUTT, JJ., concur.
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Alphonso Prosperity Smith v. Kearney, 802 So. 2d 387 (Fla. 4th DCA 2001)…s being unlawfully detained.”). At best, we conclude that in case 83-1877 the trial court imposed concurrent sentences of probation and incarceration, which is illegal. See Lee v. State, 717 So. 2d 1088, 1089 (Fla. 4th DCA 1998); Benjamin v. State, 705 So. 2d 126, 126 (Fla. 2d DCA 1998); Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA 1994). However, determining that the sentence is illegal does not mean that his custody was unlawful. While Smith may have been entitled to resentencing, a resentencing co…
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Joseph v. State, 752 So. 2d 656 (Fla. 2d DCA 2000)…ears in prison, suspended after twenty years, followed by two years’ probation. All of the sentences were to run concurrently. It is well settled that probation cannot be imposed concurrently with a sentence of incarceration. See Benjamin v. State, 705 So. 2d 126 (Fla. 2d DCA 1998). The trial court’s order denying Joseph’s motion to correct illegal sentence reflects that the sentencing court intended all of the probation periods to start at the same [*657] time, thus avoiding any conflict with the incarcerat…
Authorities Cited
- Griffin v. State, 517 So. 2d 669 (Fla. 1987)
- Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994)
- Gause v. State, 673 So. 2d 925 (Fla. 2d DCA 1996)
- State v. Campbell, 673 So. 2d 925 (Fla. 2d DCA 1996)