Mistretta v. State

99 So. 3d 561, 2012 WL 3763559, 2012 Fla. App. LEXIS 14640

Opinion

DAVIS, Judge.

Vincent Mistretta appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mistretta was originally sentenced as a youthful offender for counts of lewd and lascivious battery, child abuse, and assault and battery on a prison facility detainee or visitor. While serving the probationary portions of those sentences, Mistretta violated his probation by committing a new law violation. He was sentenced to eight years’ imprisonment for the original lewd and lascivious battery conviction. We reverse Mistret-ta’s sentence on this count and remand for the trial court to designate him a youthful offender. See Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012) (“[T]he sentencing court must maintain the defendant’s youthful offender status upon resen-tencing for a violation of probation even when the violation was substantive.” ); Tidwell v. State, 74 So.3d 503, 503 (Fla. 2d DCA 2011) (“[W]hen a youthful offender commits a violation of probation, even a substantive one as described in section 958.14, his status as a youthful offender cannot be revoked.” ); Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (“ ‘Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.’ ” (quoting Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010))).

We also note that under section 958.14, Florida Statutes (2005), a youthful offender who commits a substantive violation of probation can be sentenced to the maximum sentence allowable for the original crime. Therefore Mistretta’s eight-year prison sentence for one count of lewd and lascivious battery is legal. See § 800.04(4), Fla. Stat. (2005); State v. Meeks, 789 So.2d 982, 984-85 (Fla.2001); Smiley v. State, 781 So.2d 458, 460 (Fla. 2d DCA 2001). Accordingly, we reverse the postconviction court’s order and remand only for amendment of Mistretta’s sentence to reflect his youthful offender classification.

Reversed and remanded.

WHATLEY and WALLACE, JJ„ Concur.