ROGER M. JACKSON

v.

STATE OF FLORIDA

BERGER, J.

Roger Jackson appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. He argues that his 22-year concurrent sentences for four second-degree felonies are illegal.¹ We agree and reverse.

Jackson was found guilty of committing two counts of lewd and lascivious acts in the presence of a minor and two counts of lewd and lascivious or indecent acts upon a minor child, in violation of section 800.04(1), and (4), Florida Statutes (1998), all second-degree felonies.

On May 7, 2001, Jackson was sentenced on all counts to serve a concurrent 144 months (12 years) in the Department of Corrections, followed by 10 years of probation. Each individual sentence amounted to a composite sentence of 22 years.2 To date, Jackson has served a combination of incarceration and probation of over 18 years. "When a defendant is sentenced to a term in prison followed by probation, the combined times must not exceed the statutory maximum." Gonzales v. State, 816 So. 2d 720, 721 (Fla. 5th DCA 2002) (citing State v. Holmes, 360 So. 2d 380 (Fla. 1978); Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998); Soria v. State, 584 So. 2d 1130 (Fla. 5th DCA 1991)). The statutory maximum sentence for a second-degree felony is fifteen years. See § 775.082(3)(c), Fla. Stat. (1998).

Thus, Jackson's original 22-year sentence was illegal.

The State does not dispute that Jackson's original sentences were illegal. It nonetheless argues Jackson should be estopped from challenging his original sentences because he waited until after he violated his probation to file his motion. See Stroble v. 2 Jackson's scoresheet provides for a lowest permissible sentence of 144 months (12 years) and a maximum 240-month sentence (20 years).

The Criminal Punishment Code authorizes a sentencing court to exceed the statutory maximum sentence for any given offense by the lowest permissible guideline sentence if the lowest permissible sentence exceeds the statutory maximum. See Butler v. State, 774 So. 2d 925 (Fla. 5th DCA 2001).

Here, the lowest permissible sentence was 144 months, which clearly did not exceed the 15-year statutory maximum sentence for a second-degree felony. See § 775.082(3)(c), Fla. Stat. (1998).

State, 689 So. 2d 1089, 1090 (Fla. 5th DCA 1997) ("[O]ne who takes advantage of an invalid sentence until he violates community control is estopped to assert the invalidity of his original sentence."); Huff v. State, 672 So. 2d 634, 635 (Fla. 1st DCA 1996) (finding improper sentence is not reversible on appeal after violation of probation); Dupree v. State, 708 So. 2d 968 (Fla. 1st DCA 1998) (determining defendant was estopped from challenging illegal sentence where he waited until after violating community control to challenge sentence).

But see Gonzales, 816 So. 2d at 722 (ruling defendant not estopped from challenging initial illegal sentence where "the full 15 year prison term allotted for a second degree felony" was served before challenging sentence upon violation of the illegally imposed probation); White v. State, 828 So. 2d 491 (Fla. 1st DCA 2002) (finding defendant not estopped from challenging original illegal sentence after serving an incarcerative or probationary term in excess of the statutory maximum when VOP sentence challenged).

Here, Jackson was sentenced to serve 12 years, and not the full 15 years the court could have imposed, prior to probation commencing. After his release from prison, Jackson began serving the probationary portion of his sentence, which he violated one month before a legal fifteen-year sentence would have terminated. Instead of sentencing Jackson to prison on the violation, or even a new term of probation, the trial court simply modified Jackson's original probation to include community control.

Thus, Jackson continues to serve the same composite sentences originally imposed in excess of the fifteen-year statutory maximum. Because Jackson was not sentenced to a new term of incarceration or probation upon his violation of probation and because his rule 3.800(a) motion challenging the legality of his sentences was filed after the statutory maximum number of years had passed for his second-degree offenses, Jackson is not estopped from challenging the legality of his original sentence. See Gonzalez, 816 So. 2d at 722. His sentences were originally illegal and continue to be illegal. See id. at 721; Soria, 584 So. 2d at 1131.

Accordingly, we reverse the order denying Jackson's motion to correct illegal sentence and remand with directions that the trial court terminate his probation. REVERSED AND REMANDED. EISNAUGLE and GROSSHANS, JJ., concur.