Gause v. State

673 So. 2d 925, 1996 Fla. App. LEXIS 5128, 1996 WL 253295

Opinion

PER CURIAM.

Robert P. Gause appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800. Because Mr. Gause is sentenced to probation concurrent with incarceration, we must reverse.

Mr. Gause was convicted of aggravated battery with a firearm (count I) and first-degree burglary (count II). The trial court, sentenced him to fifteen years’ probation on count I and six years’ incarceration on count II. The sentences are scheduled to be served concurrently. The motion challenging this sentence raised other issues that were correctly resolved by the trial court, but the concurrent sentences are illegal.

It is well established that probation and incarceration cannot be imposed concurrently. Clemons v. State, 629 So.2d 1067 (Fla. 2d DCA 1994). In its response to this appeal, the state suggests that the term of probation should be consecutive and should be limited to nine years to avoid any possible double jeopardy issue on resentencing. We agree.

Reversed and remanded for resentencing on count I.

PARKER, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.