JOSHUA E. BOUIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed trial court's reclassification of attempted burglary conviction from second-degree to first-degree felony but reversed and remanded for resentencing because the combined incarceration and probation sentence of 38 years exceeded the 30-year statutory maximum for first-degree felonies.
A split sentence combining incarceration and probation cannot exceed the statutory maximum penalty for the offense, even if each component individually complies with sentencing guidelines.
[1] A split sentence combining incarceration and probation cannot exceed the statutory maximum penalty for the offense.
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the trial court wished to impose a split sentence, the combined number of years of incarceration and probation could not exceed the thirty-year statutory maximum.”
Court explaining the rule governing split sentences and statutory maximums
Bouie was convicted of attempted burglary of a conveyance with an assault while carrying a weapon and sentenced to 28 years incarceration followed by …
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Joshua E. Bouie, Appellant, seeks review of the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We affirm in part and reverse in part.
Of the four claims Appellant raised, only one has merit. Among his several convictions, Appellant was convicted of attempted burglary of a conveyance with an assault while carrying a weapon. The trial court correctly concluded there was nothing improper about reclassifying his conviction from a second-degree felony to a first-degree felony based on carrying a weapon because it was not an essential element of the charge of burglary of a conveyance with an assault. However, Appellant was sentenced to twenty-eight years’ incarceration, followed by ten years’ probation. This exceeded the thirty-year statutory maximum for a first-degree felony offense and constitutes an illegal sentence. If the trial court wished to impose a split sentence, the combined number of years of incarceration and probation could not exceed the thirty-year statutory maximum. See Davis v. State, 35 So.3d 1041 (Fla. 2d DCA 2010); Gerow v. State, 516 So.2d 326, 326 (Fla. 2d DCA 1987). Accordingly, we reverse and remand for re-sentencing on count II and otherwise affirm.
AFFIRMED IN PART; REVERSED IN PART; REMANDED for resentenc-ing.
PALMER, EVANDER and COHEN, JJ., concur.
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State v. Domonique T. Pelham, 99 So. 3d 599 (Fla. 5th DCA 2012)…the original arrest and charge for the initial offense” is insufficient to meet the “same conduct” test). Our court has consistently applied this “same act” or “same conduct” test in more recent years. Hanna, 858 So. 2d at 1250; Cummings v. State, 64 So. 3d 712 (Fla. 5th DCA 2011); State v. Banks, 50 So. 3d 730 (Fla. 5th DCA 2010); Clevenger v. State, 967 So. 2d 1039 (Fla. 5th DCA 2007); State v. Deratany, 410 So. 2d 977 (Fla. 5th DCA 1982). However, as pointed out by Pel-ham, this was not the test that we…
Authorities Cited
- Gerow v. State, 516 So. 2d 326 (Fla. 2d DCA 1987)
- Carson Davis v. State, 35 So. 3d 1041 (Fla. 2d DCA 2010)