Opinion
No. 81-478.
May 26, 1982.
Appeal from the Circuit Court, Seminole County, Volie A. Williams, Jr., J.
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant has been granted a belated appeal from his conviction for aggravated assault. We affirm. We previously affirmed the sentence in Smith v. State, 395 So.2d 575 (Fla. 5th DCA 1981); however, our decision predated the Florida Supreme Court's clarification of its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). Villery makes clear that a "split sentence" of two years in prison followed by three years on probation such as the one imposed by the trial court in this case is invalid. Because Villery has retroactive application appellant may seek relief from his illegal sentence by means of a motion for post-conviction relief before the trial court. Fla.R.Crim.P. 3.850.
§ 784.021, Fla. Stat. (1979).
JUDGMENT AFFIRMED.
DAUKSCH, C.J., and FRANK D. UPCHURCH, Jr., J., concur.