Rozinski v. State

298 So. 2d 546, 1974 Fla. App. LEXIS 8947

• Court: District Court of Appeal of Florida
• Decided: August 7, 1974
• Docket: No. 74-370
• Status: Published

Opinion

GRIMES, Judge.

In 1971 appellant pled guilty to and was put on probation for resisting an officer with violence in violation of F.S. 843.01. The offense occurred in 1970. Subsequently, appellant violated her probation but was not apprehended therefor until 1974. After pleading guilty to violation of the probation, appellant’s probation was revoked and she was sentenced to four years imprisonment for the violation of F.S. 843.01. Appellant argues that this sentence is illegal.

The statute, F.S. 843.01, was amended effective January 1, 1972, Laws of Florida Ch. 71-136, to provide that resisting an officer with violence to his person is a third degree felony punishable by up to five years imprisonment. However, in 1970 when the crime was committed, it was punishable “by imprisonment in the state prison not exceeding two years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding $1,000.” Appellant’s punishment could not legally exceed these limits as sentence must be imposed under the law in effect at the time the crime was committed. Turner v. State, 87 Fla. 155, 99 So. 334 (1924). She cannot be punished under the provisions of a statute enacted or amended subsequent to the commission of her offense. Raines v. State, 42 Fla. 141, 28 So. 57 (1900).¹

The proper course when sentence is in excess of that authorized by law is to remand for imposition of a proper sentence. Bascelio v. Mayo, Fla.1955, 81 So.2d 649; Bass v. State, Fla.App.1st, 1970, 232 So.2d 25.

Remanded with directions.

MANN, C. J., and BOARDMAN, J., concur.

1 . The cited cases construed Article III, Section 32, of the 1885 Constitution. They are pertinent to construction of Article X, Section 9, of the 1968 Constitution which is similar in its language and effect. Article X, Section 9, 1968 Constitution:

“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” Article III, Section 32, 1885 Constitution:

“The repeal or amendment of any Criminal Statute shall not effect the prosecution or punishment of any crime committed before such repeal or amendment.”