WILLIAM J. KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's original true split sentence limits the maximum penalty upon probation revocation to the original sentence term.
William Kelly was originally sentenced to 24 months, suspended, and placed on probation. After revocation, he received a sentence of two years incarce…
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WHATLEY, Judge.
William Kelly appeals the sentence he received after the revocation of his probation. We reverse.
Kelly was .originally sentenced to twenty-four months’ imprisonment, the entire term suspended, and placed on three years’ drug offender probation. After revocation of his probation, Kelly was sentenced to two years’ incarceration followed by two years’ probation. This was error. Kelly’s original sentence was a true split sentence, and therefore, the maximum penalty he could receive is twenty-four months. See Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992). Consequently, the total penalty of four years is illegal, see Silva, and constitutes fundamental error which we can address despite Kelly’s failure to raise this issue in the trial court. See Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999).
Accordingly, we' reverse Kelly’s sentence and remand for resentencing. Upon remand, the trial court may vacate the probationary term or combine a period of probation with a period of incarceration which does not exceed the tw,enty-four month sentence originally imposed.
Reversed and remanded.
PATTERSON, C.J., and NORTHCUTT, J., Concur. '
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Liles v. State, 837 So. 2d 1151 (Fla. 1st DCA 2003)…imum sentence he could receive for violating his probation was three years’ incarceration. Poore v. State, 531 So. 2d 161 (Fla.1988); State v. Powell, 703 So. 2d 444 (Fla.1997); Crawford v. State, 763 So. 2d 1240 (Fla. 1st DCA 2000); Kelly v. State, 762 So. 2d 924 (Fla. 2d DCA 2000); Evans v. State, 730 So. 2d 768 (Fla. 1st DCA 1999). Accordingly, we reverse with instructions for the trial court to sentence appellant to not more than three years’ incarceration with credit for time served. Reversed and reman…
Authorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Gerrard D. Jones v. State, 602 So. 2d 694 (Fla. 2d DCA 1992)
- Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992)