MOSES GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed burglary conviction but modified sentence because combined imprisonment and probation term illegally exceeded the five-year statutory maximum for third-degree felony.
A sentence combining imprisonment and probation that exceeds the statutory maximum for the offense is illegal and must be modified to comply with the maximum.
[1] Combined terms of imprisonment and probation imposed for a single offense cannot exceed the statutory maximum sentence prescribed for that offense.
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Join FLexlaw to unlock all legal intelligenceGreen was convicted by jury of burglary of a conveyance, a third-degree felony. He was sentenced to five years imprisonment followed by five years pro…
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PER CURIAM.
This is an appeal from judgment and sentence of the Appellant for the offense of burglary, Section 810.02, Florida Statutes (1975). The jury found the Appellant guilty of burglary of a conveyance, and the Appellant was adjudicated guilty of the offense and sentenced to five years imprisonment. After having served one year of this term, Appellant was to be placed on probation for a period of five years.
The offense, herein charged, was a third degree felony punishable by imprisonment up to five years pursuant to Sections 810.-02(3), 775.082, Florida Statutes (1975). The Appellant was herein sentenced to combined terms of imprisonment and probation, which exceeded the maximum five year sentence by one year. As the State concedes, this was an illegal sentence. Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); Troiano v. State, 347 So. 2d 657 (Fla. 4th DCA 1977); Myers v. State, 347 So. 2d 1053 (Fla. 4th DCA 1977). Accordingly, the Appellant’s sentence is modified to reduce the period of probation from five years to four years.
We have examined the remaining point on appeal and have found no reversible error. Therefore, the judgment is affirmed and the sentence is affirmed as modified.
SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.
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Rozmestor v. State, 381 So. 2d 324 (Fla. 5th DCA 1980)…defendant to serving a prison term without regard to “the march of the years.” State v. Bateh, 110 So. 2d 7 (Fla.1959); Laniero v. Wainwright, 347 So. 2d 684 (Fla. 4th DCA 1977); Kishel v. State, 351 So. 2d 1058 (Fla. 4th DCA 1977); Green v. State, 354 So. 2d 135 (Fla. 1st DCA 1978); McArthur v. State, 330 So. 2d 548 (Fla. 1st DCA 1976). In Segal v. Wainwright, 304 So. 2d 446 (Fla.1974), the Florida Supreme Court rejected the state’s argument that the defendant should serve a five year robbery sentence with…
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Cherry v. State, 367 So. 2d 708 (Fla. 1st DCA 1979)…nt was a prison term of five years, each count to run concurrent, but after two years, a probationary term of five years. This sentence exceeded the maximum five year sentence by two years and was thus an illegal sentence. See, e. g. Green v. State, 354 So. 2d 135 (Fla. 1st DCA 1978). Accordingly, appellant’s sentence is modified to reduce the period of probation from five years to three years. Appellant’s other points being without merit, the judgment is affirmed and the sentence is affirmed as modified. M…
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Kovschak v. State, 355 So. 2d 193 (Fla. 1st DCA 1978)…and 775.082, Florida Statutes (1975), the combined terms of imprisonment and probation imposed exceeds .the statutory maximum by 31 days. Accordingly, the Appellant’s sentence is modified to reduce the period of probation by 31 days. Green v. State, 354 So. 2d 135 (Fla. 1st DCA 1978). We have examined the briefs and the record and have found no other error. Therefore the judgment is affirmed and the sentence is affirmed as modified. McCORD, Chief Judge, BOYER and SMITH, JJ., concur.…
Authorities Cited
- Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976)
- Troiano v. State, 347 So. 2d 657 (Fla. 4th DCA 1977)
- Myers v. State, 347 So. 2d 1053 (Fla. 4th DCA 1977)