Faircloth v. State

479 So. 2d 779, 10 Fla. L. Weekly 2552, 1985 Fla. App. LEXIS 16705

• Court: District Court of Appeal of Florida
• Decided: November 13, 1985
• Docket: No. 84-2502
• Status: Published

Opinion

SCHEB, Judge.

After revoking defendant Michael T. Faircloth’s probation, the trial court sentenced him to fifteen years imprisonment under the sentencing guidelines and retained jurisdiction over one-third of his sentence. Defendant raises two points on appeal. We find merit to both.

First, defendant correctly contends that the trial court improperly sentenced him under the guidelines because the crime underlying his probation was committed before October 1,1983, and he did not elect to be sentenced under the guidelines. § 921.001(4)(a), Fla.Stat. (1983); Blackwelder v. State, 476 So.2d 280 (Fla. 2d DCA 1985).

Second, defendant also correctly points out that the court’s retention of jurisdiction over one-third of his sentence was improper. Section 947.16(3), Florida Statutes (1983), authorizes retention of jurisdiction for certain enumerated felonies. Since escape, the underlying crime in this case, is not listed under section 947.16(3), the trial court erred in retaining jurisdiction over defendant’s sentence.

Accordingly, we affirm defendant’s conviction and sentence, but construe his sentence as a non-guidelines sentence. The trial court obviously intended to impose the maximum statutory prison term; therefore, we need not remand for resentencing. Blackwelder at 281. We also strike the court’s retention of jurisdiction over that sentence.

GRIMES, A.C.J., and SCHOONOVER, J., concur.