Opinion
No. 93-03702.
November 23, 1994. Rehearing Denied December 2, 1994.
Appeal from the Circuit Court, Pinellas County, Karl B. Grube, J.
James Marion Moorman, Public Defender, and Brad Permar, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kimberly D. Nolen, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Antwan Shirley, challenges the judgment and sentence imposed upon him for the crime of simple battery. We affirm the conviction but reverse and remand for resentencing.
The appellant was initially charged with two counts of robbery with a firearm, one count of attempted robbery with a firearm, and one count of aggravated battery. A jury found him guilty of two counts of robbery and one count of simple battery. The trial court initially sentenced the appellant, for these three crimes, to two years of community control to be followed by two years of probation. The two robbery counts were subsequently vacated, but the court did not change the sentence. The appellant filed a timely notice of appeal.
We find no merit in the appellant's contention that the evidence was not sufficient to sustain the jury verdict finding him guilty of simple battery and, accordingly, affirm the conviction without further discussion.
The trial court, however, erred by sentencing the appellant to serve two years of community control followed by two years of probation for the offense of simple battery. Simple battery is a first degree misdemeanor punishable by a maximum sentence of one year in the county jail. §§ 784.03(2), 775.082(4)(a), Fla. Stat. (1991). We, accordingly, affirm the appellant's conviction but remand for resentencing.
Affirmed in part, reversed in part, and remanded.
THREADGILL and BLUE, JJ., concur.