Keller v. State., 76-1663

Decision Date01 November 1977
Docket NumberNo. 76-1663,76-1663
Citation351 So.2d 382
PartiesPatrick KELLER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Appeal from Circuit Court, Brevard County; Robert B. McGregor, Judge.

Richard L. Jorandby, Public Defender, Craig S. Barnard, James K. Green and Frank B. Kessler, Asst. Public Defenders, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant was convicted of a third degree felony and sentenced to 21/2 years in prison and 41/2 years on probation thereafter. The maximum period to which he could be sentenced is 5 years therefore the probation portion of his sentence is reduced from 41/2 years to 21/2 years. Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976); Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977).

AFFIRMED AS MODIFIED.

DOWNEY, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge, concurring specially:

I concur in the result but note this case has the same probation requirement I deplored in Pace v. State, (Fla. 4th DCA, Case No. 76-2210, Opinion filed June 24, 1977). See also dissent upon denial of rehearing, Opinion filed October 11, 1977.

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