Milbry v. State, 83-1627
| Decision Date | 18 December 1984 |
| Docket Number | No. 83-1627,83-1627 |
| Citation | 10 Fla. L. Weekly 21,469 So.2d 137 |
| Parties | 10 Fla. L. Weekly 21 Livingston MILBRY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and G. Bart Billbrough, Asst. Atty. Gen., for appellee.
Before BARKDULL and HUBBART and JORGENSON, JJ.
This is an appeal from an adjudication and sentence for the crime of second degree grand theft. The sole point on appeal is that the trial court erred in sentencing the defendant, as a youthful offender under Section 958.05, Florida Statutes (1983), to four years imprisonment plus two years of community control because this six-year combination of imprisonment and probation exceeds the statutory maximum of five years imprisonment for second degree grand theft. §§ 812.014(2)(b), 775.082(3)(d), Fla.Stat. (1983). See State v. Holmes, 360 So.2d 380 (Fla.1978); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Corraliza v. State, 391 So.2d 330 (Fla. 3d DCA 1980), pet. for review denied, 399 So.2d 1141 (Fla.1981); Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). We agree and reverse the sentence herein.
This court is committed to the principle that the Youthful Offender Act [ch. 958, Fla.Stat. (1983) ] may not be invoked to impose a sentence which exceeds the statutory maximum set for the offense for which an accused stands convicted. Saunders v. State, 405 So.2d 1037 (Fla. 3d DCA 1981); contra Dunlap v. State, 433 So.2d 631 (Fla. 1st DCA 1983). The Act was obviously designed to impose more lenient sanctions on a youthful offender who meets the statutory requirements, not to aggravate the sanctions which would ordinarily apply.
The adjudication of guilt under review is affirmed; the sentence under review is reversed and the cause is remanded to the trial court for resentencing under the Youthful Offender Act to a term of imprisonment and community control which does not exceed a total of five years.
Affirmed in part; reversed in part.
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Eubanks v. State, 95-2466
...3.701(d)(10); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Kline v. State, 642 So.2d 1146 (Fla. 1st DCA 1994); Milbry v. State, 469 So.2d 137 (Fla. 3d DCA 1984), opinion adopted, 476 So.2d 1281, 1282 (Fla.1985); see also Fla.R.Crim.P. 3.701(d)(12) Commission Notes (1988) ("The total sanc......
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Keast v. State, 84-1001
...to modify accordingly the community control portion of the sentence. Affirmed as modified. 1 This court's opinion in Milbry v. State, 469 So.2d 137 (Fla. 3d DCA 1984), does not apply to the case sub judice. In Milbry, the sentence imposed exceeded the maximum statutory penalty. While the se......
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State v. Milbry
...Stein, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent. McDONALD, Justice. We have for review Milbry v. State, 469 So.2d 137 (Fla. 3d DCA 1984), which directly and expressly conflicts with Dunlap v. State, 433 So.2d 631 (Fla. 1st DCA 1983). We have jurisdiction. Art.......