Nguyen v. State, 89-2550
| Decision Date | 06 September 1990 |
| Docket Number | No. 89-2550,89-2550 |
| Citation | 566 So.2d 368 |
| Parties | 15 Fla. L. Weekly D2223 Duc Cong NGUYEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James N. Charles, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a sentence.
Qualified persons under age twenty-one may receive alternative sentencing treatment under Chapter 958, which sets the criteria for youthful offender treatment and limits the period of incarceration to four years maximum. In addition, the sentencing court can impose two years probation or community service to commence after release from incarceration. § 958.04(2)(c), Fla.Stat. Appellant was sentenced for two third degree felonies, each of which carries a maximum of five years imprisonment. Because he was given the youthful offender "four plus two" on each sentence, albeit to run concurrently, the sentences were technically excessive. Section 958.04(2)(d), Florida Statutes says:
The court may commit the youthful offender to the custody of the department for a period of not more than 6 years, provided that any such commitment shall not exceed the maximum sentence for the offense for which the youthful offender has been convicted. [emphasis supplied].
The sentencing court can impose virtually the same punishment by giving appellant consecutive sentences, neither of which exceeds the "four plus two" youthful offender formula. Under Allen v. State, 526 So.2d 69 (Fla.1988), the court cannot exceed the six-year cap, no matter how many sentences are imposed at the time he is sentenced. We vacate the sentence and remand for resentencing.
SENTENCE VACATED; REMANDED.
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Kelly v. State, 99-629.
...So.2d 830 (Fla.1999), (consecutive youthful offender sentences exceeding applicable maximum of six years are illegal); Nguyen v. State, 566 So.2d 368 (Fla. 5th DCA 1990) (sentencing court can impose any youthful offender sentence, so long as no matter how many sentences are imposed, the tot......
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Lampkins v. State, 4D01-1963.
...the statutory maximum of four years of imprisonment provided by section 958.04(2)(c), Florida Statutes (2000). See also Nguyen v. State, 566 So.2d 368 (Fla. 5th DCA 1990)(noting that chapter 958 limits the period of incarceration in youthful-offender sentences to four years maximum). We agr......
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McKee v. State, 5D03-89.
...has been convicted." In the instant case, McKee should have received no more than five years for each conviction. In Nguyen v. State, 566 So.2d 368 (Fla. 5th DCA 1990), in circumstances similar to the instant case, we reversed concurrent sentences of four years incarceration followed by two......
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Lampkins v. State, 01-1963
...statutory maximum of four years of imprisonment provided by section 958.04(2)(c), Florida Statutes (2000). See also Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990)(noting that chapter 958 limits the period of incarceration in youthful-offender sentences to four years maximum). We agree ......