ALLEN FONTEYNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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KELLY, Judge.
Allen Fonteyne challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Fonteyne claims that his sentence of one year of probation for reckless driving is illegal because it exceeds the statutory maximum for that offense. We agree and reverse.
Section 316.192(2)(a), Florida Statutes, provides that any person convicted of reckless driving shall be punished upon first conviction by imprisonment for a period of not more than ninety days. This court has held that a term of probation is not to exceed the statutory maximum for incarceration. Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). Therefore, the probationary term could not have exceeded ninety days. Nor could Fonteyne have agreed to an illegal sentence, one that exceeds the statutory maximum term. Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994). Accordingly, we vacate the sentence and remand for resentencing.
Vacated and remanded for resentencing.
SALCINES and DAVIS, JJ„ Concur.
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Murray v. State, 958 So. 2d 473 (Fla. 2d DCA 2007)…imprisonment as a habitual felony offender for delivery of cocaine, a second-degree felony,1 and fifteen years’ probation for possession of cocaine, a third-degree felony.2 The latter sentence, however, is an illegal sentence. See Fonteyne v. State, 855 So. 2d 99 (Fla. 2d DCA 2003) (holding that probationary sentence in excess of statutory maximum is an illegal sentence). We are unable to conclusively determine the trial court’s intent. We therefore reverse the sentences and remand for clarification of the s…
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Smith v. State (Fla. 6th DCA 2023)…h term of probation for a second-degree misdemeanor, even though six months might exceed the maximum period of incarceration.4 Therefore, the maximum probationary term for first-time reckless driving is six months. Smith relies on Fonteyne v. State, 855 So. 2d 99 (Fla. 2d DCA 2003), which held that the probationary term for first-time reckless driving may not exceed the maximum term of incarceration of ninety days.5 We decline to follow Fonteyne. We recognize that Smith’s probation was ordered as part of a p…
Authorities Cited
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)