ALVARIO SAMELL MCCRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while most convictions are affirmed, the written sentence for aggravated battery was illegal and must be vacated and remanded for modification.
[1] A written sentence that exceeds the statutory maximum for the offense, even if orally pronounced correctly, constitutes fundamental error cognizable on direct appeal.
[2] The combined periods of incarceration and probation imposed for a second-degree felony cannot exceed the statutory maximum period of incarceration.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of aggravated battery, robbery with a deadly weapon, grand theft auto, and false imprisonment. The written sentence for aggrav…
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On Motion For Rehearing and Clarification
PER CURIAM.
The state seeks rehearing and clarification of our opinion in McCray v. State, 24 Fla. L. Weekly D507 (Fla. 1st DCA February 19, 1999). We withdraw this opinion, deny the motion for rehearing, but grant the motion for clarification by entering the following revised opinion.
In this direct criminal appeal, Alvario Samell McCray challenges his convictions and sentences for aggravated battery, robbery -with a deadly weapon, grand theft auto, and false imprisonment. Appellant’s convictions and sentences for robbery with a deadly weapon, grand theft auto, and false imprisonment are affirmed. Appellant’s conviction for aggravated battery is also affirmed, but the written sentence imposed for that offense, 15 years in prison followed by 15 years probation, must be vacated. Although the trial court orally pronounced a 15-year sentence for the aggravated battery, a legal sentence, when the written judgment and sentence was entered, appellant was given an illegal sentence of 15 years in prison followed by 15 years probation for this offense. Aggravated battery is a second degree felony. § 784.045(2), Fla. Stat. (1995). The maximum sentence for a second-degree felony is fifteen years. § 775.082(3)(c), Fla. Stat. (1995). See State v. Holmes, 360 So. 2d 380 (Fla.1978) (combined periods of incarceration and probation cannot exceed the maximum period of incarceration provided by statute for the offense charged). Even though this sentencing error was not brought to the attention of the trial court, it is cognizable on direct appeal because it constitutes fundamental error. Gayton v. State, 725 So. 2d 1179 (Fla. 1st DCA 1998); Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)(en banc); Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997).
AFFIRMED in part, sentence VACATED in part, and REMANDED for modification of the written sentence. It is not necessary that appellant be present for this sentence modification.
KAHN, BENTON AND VAN NORTWICK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)
- Holloman v. State, 725 So. 2d 1179 (Fla. 2d DCA 1998)
- Gayton v. State, 725 So. 2d 1179 (Fla. 1st DCA 1998)