Holbert v. State

747 So. 2d 1057, 2000 Fla. App. LEXIS 120, 2000 WL 8251

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

Following the issuance of our decision in this case, Mr. Holbert filed a motion for rehearing. As authority for the motion, he cited to this court’s opinion in Fuller v. State, 401 So.2d 943 (Fla. 5th DCA 1981). On the authority of Fuller, we grant rehearing, withdraw our previous decision, and substitute the following in its place.

Mr. Holbert appeals his sentence which was imposed upon his conviction for violating his probation, arguing that he was entitled to be sentenced as a youthful of fender under section 958.04 of the Florida Statutes (1997). Our review of the sentencing transcript reveals that this issue was raised before the trial court; however, in rejecting Mr. Holbert’s request it is unclear whether the trial court realized that, notwithstanding the fact that Mr. Holbert had not been previously sentenced as a youthful offender, the court had the authority upon re-sentencing to impose such a sentence. Accordingly, we reverse Mr. Holbert’s sentence and remand this matter to the trial court for reconsideration.

SENTENCE REVERSED; AND CAUSE REMANDED FOR RESEN-TENCING.

ANTOON, C.J., HARRIS and GRIFFIN, JJ., concur.