Brooks v. State

636 So. 2d 205, 1994 Fla. App. LEXIS 4833, 1994 WL 190001

Opinion

PER CURIAM.

The appellant received a 5-year sentence for committing a lewd act upon a child. The sentence was suspended on the condition that appellant serve 1 year on community control to be followed by 4 years on probation. When the appellant subsequently violated his community control, the trial court imposed an 8-year prison sentence, prompting the instant appeal.

The state concedes error in the imposition of a revocation sentence that exceeded the suspended portion of the original sentence. Where, as here, a true split sentence is imposed, the sentencing judge may not impose a term of incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence. Helton v. State, 611 So.2d 1323 (Fla. 1st DCA 1993).

Accordingly, the sentence is vacated and the case is remanded for resentencing.

MINER, WEBSTER and DAVIS, JJ., concur.