Baldwin v. State
This text of 558 So. 2d 173 (Baldwin v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Kenneth Leon BALDWIN, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fifth District.
James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Fleming Lee, Asst. Atty. Gen., Daytona Beach, for appellee.
GOSHORN, Judge.
Appellant was convicted of battery, a first degree misdemeanor. The trial judge *174 placed him on probation for one year but refused to allow the appellant credit for 198 days served in the county jail awaiting trial.
Section 775.082(4)(a), Florida Statutes (1987) provides that the maximum penalty for a first degree misdemeanor is imprisonment for 1 year. The term of probation cannot exceed the maximum penalty provided by law, Williams v. State, 402 So.2d 537 (Fla. 5th DCA 1981), nor may the total penalty of probation and incarceration exceed the statutory maximum. See McCray v. State, 517 So.2d 770 (Fla. 2d DCA 1988); Davis v. State, 384 So.2d 53 (Fla. 2d DCA 1980). Accordingly, this cause is remanded with instructions to allow credit for time served against the term of probation.
Additionally, the appellant alleges and the State does not dispute that costs were imposed without notice. The imposition of costs is therefore stricken. Mays v. State, 519 So.2d 618 (Fla. 1988).
Conviction AFFIRMED; sentence MODIFIED and REMANDED with instructions.
COWART and PETERSON, JJ., concur.
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558 So. 2d 173, 1990 WL 26953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-v-state-fladistctapp-1990.