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573 So. 2d 446

Docket No. 90-01191.

Mitchell v. State

Kerrie Marlene MITCHELL, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided February 1, 1991.

District Court of Appeal of Florida · decided 1991-02-01

Cited by 8 later decisions — most recently December 1998

8 state decisions

Relies on Branam v. State · 545 So. 2d 961 - Tyner v. State · 545 So. 2d 968 - Speller v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1991-02-01

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¶1*447 James Marion Moorman, Public Defender, and Andrea Norgard, Asst. Public Defender, Bartow, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.

¶3PER CURIAM.

¶4We affirm appellant's convictions for uttering a forged instrument, burglary of a dwelling, grand theft, and petit theft. However, we are required to remand this case for correction of sentence.

¶5Appellant was convicted following her entry of no contest pleas in several separate circuit court cases, including charges of violating probation. The only negotiation was for a sentence at the midpoint of the range recommended by sentencing guidelines. The total sanction imposed, fifteen years in prison followed by five years probation, is consistent with that recommendation. The split sentence does not represent a departure, because only the incarcerative portion must conform to the guideline range. Tyner v. State,545 So.2d 961 (Fla. 2d DCA 1989). However, the method by which sentence was imposed results in an unlawful sentence for each of the several crimes involved. The trial court imposed the same split sentence for each felony charge, thereby exceeding the statutory maximum in each case. §§ 775.082(3)(c), (d), Fla. Stat. (1989). Cf. Speller v. State,545 So.2d 968 (Fla. 2d DCA 1989).

¶6After remand the trial court may impose any combination of concurrent or consecutive sentences that would result in the same total sanction, so long as the statutory maximum is not exceeded for any offense. Branam v. State,554 So.2d 512 (Fla. 1989). Appellant need not be present for resentencing.

¶7Affirmed in part, reversed in part, and remanded with instructions.

¶8CAMPBELL, A.C.J., and LEHAN and THREADGILL, JJ., concur.

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