Kelly v. State

762 So. 2d 924, 2000 Fla. App. LEXIS 3747, 2000 WL 331901

Opinion

WHATLEY, Judge.

William Kelly appeals the sentence he received after the revocation of his probation. We reverse.

Kelly was .originally sentenced to twenty-four months’ imprisonment, the entire term suspended, and placed on three years’ drug offender probation. After revocation of his probation, Kelly was sentenced to two years’ incarceration followed by two years’ probation. This was error. Kelly’s original sentence was a true split sentence, and therefore, the maximum penalty he could receive is twenty-four months. See Silva v. State, 602 So.2d 694 (Fla. 2d DCA 1992). Consequently, the total penalty of four years is illegal, see Silva, and constitutes fundamental error which we can address despite Kelly’s failure to raise this issue in the trial court. See Bain v. State, 730 So.2d 296 (Fla. 2d DCA 1999).

Accordingly, we' reverse Kelly’s sentence and remand for resentencing. Upon remand, the trial court may vacate the probationary term or combine a period of probation with a period of incarceration which does not exceed the tw,enty-four month sentence originally imposed.

Reversed and remanded.

PATTERSON, C.J., and NORTHCUTT, J., Concur. '