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762 So. 2d 924

Kelly v. State

District Court of Appeal of Florida · decided 2000-03-31

Cited by 1 later decisions — most recently February 2003

1 state decisions

Relies on 730 So. 2d 296 - Bain v. State · Silva v. State

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Decided 2000-03-31

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WHATLEY, Judge.

¶1William Kelly appeals the sentence he received after the revocation of his probation. We reverse.

¶2Kelly was .originally sentenced to twenty-four months’ imprisonment, the entire term suspended, and placed on three years’ drug offender probation. After revocation of his probation, Kelly was sentenced to two years’ incarceration followed by two years’ probation. This was error. Kelly’s original sentence was a true split sentence, and therefore, the maximum penalty he could receive is twenty-four months. See Silva v. State, 602 So.2d 694 (Fla. 2d DCA 1992). Consequently, the total penalty of four years is illegal, see Silva, and constitutes fundamental error which we can address despite Kelly’s failure to raise this issue in the trial court. See Bain v. State, 730 So.2d 296 (Fla. 2d DCA 1999).

¶3Accordingly, we' reverse Kelly’s sentence and remand for resentencing. Upon remand, the trial court may vacate the probationary term or combine a period of probation with a period of incarceration which does not exceed the tw,enty-four month sentence originally imposed.

¶4Reversed and remanded.

PATTERSON, C.J., and NORTHCUTT, J., Concur. '
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