Gause v. State

District Court of Appeal of Florida

Gause v. State

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

CourtDistrict Court of Appeal of Florida

DecidedMay 15, 1996

DocketNo. 96-01025

StatusPublished

Cited by1 cases

This text of 673 So. 2d 925 (Gause 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

Gause v. State, 673 So. 2d 925, 1996 Fla. App. LEXIS 5128, 1996 WL 253295 (Fla. Ct. App. 1996).

Pincite

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.

Free access — add to your briefcase to read the full text and ask questions with AI