Cruz v. State, 95-3391
| Decision Date | 08 May 1996 |
| Docket Number | No. 95-3391,95-3391 |
| Parties | 21 Fla. L. Weekly D1084 Ralph Anthony CRUZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court for Dade County, Barbara S. Levenson, Judge.
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Wanda Raiford, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
The defendant, Ralph Anthony Cruz, was convicted of Lewd And Lascivious Assault and Indecent Exposure. In connection with his convictions for those two offenses, the trial court imposed a "general sentence" intended to cover both charges, by sentencing the defendant to serve 364 days in the County Jail, with credit for time served, followed by a period of one year's probation with special conditions. Thereafter, the defendant commenced this appeal wherein he challenged the legality of the sentence imposed as well as the basis for the convictions.
Pursuant to the State's proper concession, we reverse the general sentence imposed on the Lewd and Lascivious Assault and the Indecent Exposure charges, and remand to the trial court with directions to sentence the defendant separately on each of those two charges and, furthermore, to delete the probation portion of the sentence imposed on the defendant in connection with the Indecent Exposure charge, since the addition of probation to the jail sentence imposed for the Indecent Exposure charge exceeds the maximum penalty that can be imposed on the defendant for that offense. A person convicted of a first-degree misdemeanor "may be sentenced for a term of imprisonment not exceeding one year." § 775.082(4)(a), Fla.Stat. (1996). For a split sentence, "[t]he total sanction shall not exceed the term provided by general law or the guidelines recommended sentence...." Fla.R.Crim.P. 3.702(d)(19) (1996); see Gonzalez v. State, 546 So.2d 786, 786 (Fla. 3d DCA 1989) (); State v. Holmes, 360 So.2d 380 (Fla.1978). Since the charge of Indecent Exposure is a first-degree misdemeanor, the defendant can only be sentenced to a total term of one year. Since his sentence included one year imprisonment plus probation thereafter, his total...
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