Jones v. State

756 So. 2d 1091, 2000 Fla. App. LEXIS 5160, 2000 WL 524827

Opinion

PER CURIAM.

In this direct appeal, Appellant claims his sentence of six months incarceration followed by one year probation for a first DUI is an illegal sentence. An illegal sentence is fundamental error and can be raised for the first time on appeal even if it was not preserved below. See Nelson v. State, 719 So.2d 1230, 1232 (Fla. 1st DCA 1998).

The DUI statute the State cites in support of affirming the sentence provides that “the total period of probation and incarceration may not exceed one year.” § 316.193(6)(a), Fla. Stat. (1997). Because appellant was illegally sentenced on the DUI conviction to a period of probation and incarceration in excess of one year, this sentence is REVERSED and REMANDED to the trial court for resentenc-ing.

WOLF, KAHN, and LAWRENCE, JJ., CONCUR.