Ewell v. State

District Court of Appeal of Florida

Ewell v. State

707 So. 2d 1164, 1998 Fla. App. LEXIS 2240, 1998 WL 85385

CourtDistrict Court of Appeal of Florida

DecidedMarch 3, 1998

DocketNo. 97-2079

StatusPublished

Cited by1 cases

This text of 707 So. 2d 1164 (Ewell 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.

Bluebook

Ewell v. State, 707 So. 2d 1164, 1998 Fla. App. LEXIS 2240, 1998 WL 85385 (Fla. Ct. App. 1998).

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Opinion

JOANOS, Judge.

Appellant seeks review of the sentence imposed upon his conviction for petit theft, a second degree misdemeanor. The sentencing transcript indicates the trial court ascertained that appellant had served a total of 262 days prior to the sentencing proceeding. The court then pronounced sentence of “two months and 62 days in the county jail, and give you credit for that.” The written sentencing document for the petit theft conviction indicates the trial court imposed a sentence of 262 days, with an allowance of 262 days as jail credit.

Pursuant to section 775.082(4)(b), Florida Statutes, the maximum permissible period of incarceration for a second degree misdemeanor is 60 days. An illegal sentence is a sentence that exceeds the maximum period set forth by law for a particular offense. See Davis v. State, 661 So.2d 1193, 1196 (Fla.1995). Since the trial court inadvertently pronounced an illegal sentence, we must reverse and remand for resentencing, and for correction of the written sentence. Appellant need not be present for resentenc-ing.

BARFIELD, C.J., and SMITH, LARRY G., Senior Judge, concur.

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JOANOS, Judge.

Appellant seeks review of the sentence imposed upon his conviction for petit theft, a second degree misdemeanor. The sentencing transcript indicates the trial court ascertained that appellant had served a total of 262 days prior to the sentencing proceeding. The court then pronounced sentence of “two months and 62 days in the county jail, and give you credit for that.” The written sentencing document for the petit theft conviction indicates the trial court imposed a sentence of 262 days, with an allowance of 262 days as jail credit.

Pursuant to section 775.082(4)(b), Florida Statutes, the maximum permissible period of incarceration for a second degree misdemeanor is 60 days. An illegal sentence is a sentence that exceeds the maximum period set forth by law for a particular offense. See Davis v. State, 661 So.2d 1193, 1196 (Fla.1995). Since the trial court inadvertently pronounced an illegal sentence, we must reverse and remand for resentencing, and for correction of the written sentence. Appellant need not be present for resentenc-ing.

BARFIELD, C.J., and SMITH, LARRY G., Senior Judge, concur.

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Bluebook (online)

707 So. 2d 1164, 1998 Fla. App. LEXIS 2240, 1998 WL 85385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewell-v-state-fladistctapp-1998.

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