Turner v. State

399 So. 2d 1076, 1981 Fla. App. LEXIS 20152

Opinion

PER CURIAM.

This is an appeal from an order denying post-conviction relief. In July 1978, the appellant was adjudicated guilty of second degree murder, and he was sentenced to fifteen years imprisonment. The trial court ordered him to serve five years of this prison sentence, and the balance of the sentence was suspended, with the appellant to be placed on probation for ten years. The appellant later filed a motion for post-con-vietion relief pursuant to Fla.R.Crim.P. 3.850, and this motion was denied without an evidentiary hearing.

Subsequent to the trial court’s denial of the appellant’s motion, the Florida Supreme Court issued its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In Villery, the court held that:

incarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of* probation. ... this decision applies retroactively.

Id. at 1111. In view of this language, the trial court’s order is reversed, and this cause is remanded for resentencing pursuant to the guidelines set forth in Villery. See 396 So.2d at 1111-12.

SHAW, WENTWORTH, and THOMPSON, JJ., concur.