Kerrigan v. State

District Court of Appeal of Florida

Kerrigan v. State

99 So. 3d 553, 2012 Fla. App. LEXIS 13844, 2012 WL 3569707

CourtDistrict Court of Appeal of Florida

DecidedAugust 21, 2012

DocketNo. 1D11-6101

StatusPublished

This text of 99 So. 3d 553 (Kerrigan 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

Kerrigan v. State, 99 So. 3d 553, 2012 Fla. App. LEXIS 13844, 2012 WL 3569707 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

We affirm Appellant’s convictions and his sentence for Count 1, but upon the State’s proper concession of error, we reverse and remand for resentencing on Count 2 (Domestic Battery). The record does not contain any evidence of a prior conviction of battery, aggravated battery, or felony battery that would allow the offense to be punished as a third-degree felony under section 784.03(2), Florida Statutes (2010). Without such evidence, the offense of domestic battery is a first-degree misdemeanor punishable by up to one year in jail. See §§ 784.03(l)(b), 775.082(4)(a), Fla. Stat. (2010). Therefore, the sentence imposed for Count 2 — 84 days of time served in jail followed by one year of community control and one year of probation — exceeds the statutory maximum and is illegal.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.

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PER CURIAM.

We affirm Appellant’s convictions and his sentence for Count 1, but upon the State’s proper concession of error, we reverse and remand for resentencing on Count 2 (Domestic Battery). The record does not contain any evidence of a prior conviction of battery, aggravated battery, or felony battery that would allow the offense to be punished as a third-degree felony under section 784.03(2), Florida Statutes (2010). Without such evidence, the offense of domestic battery is a first-degree misdemeanor punishable by up to one year in jail. See §§ 784.03(l)(b), 775.082(4)(a), Fla. Stat. (2010). Therefore, the sentence imposed for Count 2 — 84 days of time served in jail followed by one year of community control and one year of probation — exceeds the statutory maximum and is illegal.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.

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Bluebook (online)

99 So. 3d 553, 2012 Fla. App. LEXIS 13844, 2012 WL 3569707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerrigan-v-state-fladistctapp-2012.