FRANK MCBRIDE, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's 30-month probation sentence for simple assault exceeded the statutory maximum of 790 days, so the court reduced it to the maximum allowable term without remand for resentencing.
A probation sentence for simple assault cannot exceed two years plus the maximum sentence for the underlying offense, and any excess is invalid and severable without remand.
[1] A probation sentence imposed under Florida Statute 948.04 cannot exceed two years plus the maximum sentence for the underlying offense, and any excess portion is invalid…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of aggravated assault and simple assault in two separate incidents, receiving 5 years imprisonment for aggravated assault and …
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PER CURIAM.
Appellant was convicted of aggravated assault and simple assault as a result of two separate incidents and sentenced to 5 years imprisonment on the former conviction and 30 months probation on the latter conviction. The appellant contends, and the State concedes, that the maximum probation that could have been imposed was two years beyond the maximum term for which appellant might have been sentenced. (F.S. 948.04). The maximum sentence for simple assault, a second degree misdemeanor, is 60 days. See F.S. 784.02 and F.S. 775.082. Therefore, the maximum sentence that could have been imposed was 730 days (two years) plus an additional 60 days making a total of 790 days. Appellant’s 30 month sentence amounts to approximately 900 days and is clearly excessive.
Accordingly, that portion of the 30 month sentence which exceeds the maximum allowable of 790 days is contrary to law and said excess is declared to be invalid; the remaining portion of the sentence, 790 days, is declared valid and is affirmed without the necessity of bringing the appellant before the trial court for resentencing. Chaires v. State, Fla.App. 1972, 265 So. 2d 529.
Affirmed, in part; reversed, in part.
OWEN, C. J., and WALDEN and MA-GER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980)…court’s judgment placing Peyton on probation for a term of three years was, however, unlawful only to the extent of the excess. Silkey v. State, 356 So. 2d 924 (Fla. 2d DCA 1978); Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); McBride v. State, 311 So. 2d 752 (Fla. 4th DCA 1975); Chaires v. State, 265 So. 2d 529 (Fla. 1st DCA 1972); Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972). The judgment was effective to place Peyton on probation for one year. On February 14, 1978, within this first year of prob…
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Troiano v. State, 347 So. 2d 657 (Fla. 4th DCA 1977)…hat crime appellant was sentenced to combined terms of imprisonment and probation, which exceeded the maximum five-year sentence by two years. Thus the error. Accordingly, appellant’s probation is reduced to two and one-half years. McBride v. State, 311 So. 2d 752 (Fla. 4th DCA 1975). Judgment and sentence affirmed, and probation modified. ANSTEAD and LETTS, JJ., concur.…
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Laniero v. Louie L. Wainwright, 347 So. 2d 684 (Fla. 4th DCA 1977)…d larceny, appellant was sentenced to combined terms of imprisonment and probation which exceeded the maximum five-year sentence by two years. Thus the error. Accordingly, appellant’s probation is reduced to one and one-half years. McBride v. State, 311 So. 2d 752 (Fla. 4th DCA 1975). Judgment and sentence affirmed, and probation modified. CROSS, ALDERMAN and DAUKSCH, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chaires v. State, 265 So. 2d 529 (Fla. 1st DCA 1972)