Opinion
No. 2D19-4882
08-04-2021
Christian ARISTIDOU, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge. Christian Aristidou appeals an order revoking his probation in two cases comprising multiple counts. On appeal, Aristidou challenges the revocation order as to only two third-degree felonies. Aristidou argues that the trial court was without jurisdiction to revoke his probation on those counts because he had already served more than the five-year statutory maximum in jail, in prison, and on probation.
The State concedes that Aristidou is correct, and we agree. See Borrego v. State , 98 So. 3d 225, 225 (Fla. 2d DCA 2012) ("When a trial court imposes a sentence of incarceration followed by probation, the combined term cannot exceed the statutory maximum for the offense." (citing Manning v. State , 961 So. 2d 1135, 1136 (Fla. 2d DCA 2007) )); Tucker v. State , 873 So. 2d 1239, 1241 (Fla. 2d DCA 2004) (agreeing that because appellant had served more than the statutory maximum sentence on her offenses, "she was not legally on probation at the time it was revoked [so that] the trial court was without jurisdiction to revoke her probation and sentence her to prison"); Gonzales v. State , 816 So. 2d 720, 722 (Fla. 5th DCA 2002) ("If the combination of probation and prison term exceeds the statutory maximum and the maximum has been expended, the balance of the probation being invalid cannot be revoked and the defendant resentenced.").
Accordingly, we reverse the revocation of Aristidou's probation as to counts four and five in case no. 13-CF-015460. On remand the circuit court shall vacate the revocation order, enter an amended revocation order consistent with this opinion, and resentence Aristidou on the other charges based on a corrected scoresheet as necessary. We otherwise affirm.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and LUCAS, JJ., Concur.