Rivas v. State

• Decision Date: 07 February 1996
• Docket Number: No. 95-0274,95-0274
• Citation: 667 So.2d 908
• Parties: 21 Fla. L. Weekly D344 Anselmo RIVAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 908

667 So.2d 908

21 Fla. L. Weekly D344

Anselmo RIVAS, Appellant, v. STATE of Florida, Appellee.

No. 95-0274.

District Court of Appeal of Florida Fourth District.

Feb. 7, 1996.

Appeal from the Circuit Court for Okeechobee County, No. 94-242 CFB; Edward A. Miller, Judge.

Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and John Tiedemann, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant appeals from two sentences imposed for violations of community control consisting of concurrent four-year jail terms followed by a period of probation/community control. We reverse and remand for the trial court to conform the written sentences to the oral pronouncement at the time of sentencing and to clarify that the combination of incarceration and probation/community control imposed for each violation does not exceed the statutory maximum for the original offense.

The sentences imposed for the original offenses consisted of two years community control followed by ten years probation. After defendant violated community control, the trial court imposed two concurrent four-year prison terms followed by a period of probation. We reject defendant's assertion that the sentences rendered were illegal Villery ¹ sentences of incarceration as a condition of probation exceeding 364 days. See § 948.03(5), Fla.Stat. (1995); Solis v. State, 622 So.2d 584 (Fla. 2d DCA 1993). See also Poore v. State, 531 So.2d 161 (Fla.1988).

A review of the sentencing transcript supports the position taken by the state that the sentences imposed were split sentences. The expressed intent of the trial court was that the sentences run concurrently and consist of a net guidelines term of four years imprisonment with credit for 214 days of time served to be followed by eleven years of probation on Count I and one year on Count II. Because the statutory maximum for Count I is 15 years and for Count II 5 years, it is clear that the trial court intended to impose the statutory maximum with a combination of jail time followed by probation.

The written sentences here, however, specify a period of four years imprisonment to be followed by an additional fifteen years of probation/community control on Count I and five years of probation/community control on Count II. Thus, the written sentences not only do not conform to the oral pronouncement, but the total terms of the written split sentences unlawfully exceed the maximum statutory periods for the original offenses. See Poore; State v. Holmes, 360 So.2d 380 (Fla.1978), holding limited, State v. Summers, 642 So.2d 742 (Fla.1994). See also Summers.

Defendant further argues that he...