JUAN CARLOS BORREGO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence combining incarceration and probation cannot exceed the statutory maximum for the offense, and the defendant cannot agree to an illegal sentence.
The defendant pleaded guilty to burglary, grand theft, and obstructing an officer. The sentence imposed for burglary exceeded the statutory maximum wh…
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Juan Carlos Borrego appeals his judgment and sentence for burglary of an unoccupied dwelling, grand theft, and obstructing or opposing an officer without violence. After entering a negotiated plea, Borrego was sentenced to ninety-six months in prison followed by ninety-six months of probation for burglary of an unoccupied dwelling, to a concurrent term of sixty months in prison for grand theft, and to time served for obstructing or opposing an officer without violence. Borre-go argues and the State concedes that the sentence for the second-degree felony of burglary of an unoccupied dwelling exceeds the statutory maximum of fifteen years and is illegal. See §§ 775.082(3)(c); 810.02(l)(b), (3)(b), Fla. Stat. (2010).
When a trial court imposes a sentence of incarceration followed by probation, the combined term cannot exceed the statutory maximum for the offense. Manning v. State, 961 So.2d 1135, 1136 (Fla. 2d DCA 2007); Gonzales v. State, 816 So.2d 720, 721 (Fla. 5th DCA 2002). A defendant cannot agree to an illegal sentence. Burgess v. State, 854 So.2d 754, 755 (Fla. 2d DCA 2003); Morales v. State, 712 So.2d 474, 474 (Fla. 2d DCA 1998). Here, the total sentence of sixteen years— ninety-six months (eight years) in prison followed by ninety-six months (eight years) *226of probation — exceeds the statutory maximum and constitutes an illegal sentence.1 See Morales, 712 So.2d at 474.
The State concedes that resentencing is required. We affirm Borrego’s convictions and reverse his sentences and remand for the trial court to impose a lawful sentence.
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and WALLACE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Aristidou v. State (Fla. 2d DCA 2021)…hout jurisdiction to revoke his probation on those counts because he had already served more than the five-year statutory maximum in jail, in prison, and on probation. The State concedes that Aristidou is correct, and we agree. See Borrego v. State, 98 So. 3d 225, 225 (Fla. 2d DCA 2012) ("When a trial court imposes a sentence of incarceration followed by probation, the combined term cannot exceed the statutory maximum for the offense." (citing Manning v. State, 961 So. 2d 1135, 1136 (Fla. 2d DCA 2007))); Tuc…
Authorities Cited
- Gonzales v. State, 816 So. 2d 720 (Fla. 5th DCA 2002)
- Recanzone v. The MAY Co., 712 So. 2d 474 (Fla. 4th DCA 1998)
- Manning v. State, 961 So. 2d 1135 (Fla. 2d DCA 2007)
- Gonnella v. Chantelle A. Gonnella & Dep't of Revenue, 854 So. 2d 754 (Fla. 2d DCA 2003)
- Burgess v. State, 854 So. 2d 754 (Fla. 2d DCA 2003)