SCOTT ALAN MOYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Scott Allen Moyer was convicted of causing serious bodily injury to another while driving under the influence, a third degree felony, and a violation of section 316.193(3)(a), (b), (p)2, Florida Statutes (1997).
We find no error in the conviction, but vacate the sentence and remand for resentencing. The state concedes that the split sentence of 54 months incarceration, followed by five years probation, exceeds both the statutory maximum of five years for a third degree felony and the 90 month upper end of Moyer’s sentencing guidelines range. See Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997).
We also note that the judgment reflects that Moyer was convicted of a second degree felony rather than a third degree felony. This error shall also be corrected upon remand.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.
DAUKSCH, HARRIS and PETERSON, JJ., concur.
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Citator
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Eckard v. State, 758 So. 2d 742 (Fla. 5th DCA 2000)…ds both the 5-year statutory maximum and the 185-month upper end of the sentencing guidelines range and is therefore illegal. See Willis v. State, 736 So. 2d 1251 (Fla. 2d DCA 1999); Nunez v. State, 721 So. 2d 346 (Fla. 2d DCA 1998); Moyer v. State, 715 So. 2d 1112 (Fla. 5th DCA 1998); Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997), receded from on other grounds, Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA), rev. granted, 718 So. 2d 169 (Fla.1998), rev. granted, 728 So. 2d 203 (Fla.1999). Accordingly, th…
Authorities Cited
- Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997)