Opinion
No. 80-1211.
June 10, 1981.
Appeal from Circuit Court, Brevard County; Tom Waddell, Jr., Judge.
James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant Smith was convicted of aggravated battery in violation of section 784.045, Florida Statutes (1979). The trial court sentenced Smith to the custody of the Department of Corrections for fifteen years with five years of that custody to be imprisonment, followed by ten years of that custody to be probation. It is this sentence that Smith is appealing.
In the recent case of Villery v. Florida Parole and Probation Comm'n., 396 So.2d 1107 (Fla. 1981), the Florida Supreme Court stated that a sentence of incarceration for one year or more that is imposed as part of a split sentence pursuant to section 948.01(4), Florida Statutes (1979) is invalid.
Accordingly, the sentence is reversed and we remand this case to the trial court with directions to impose a new sentence that is in conformity with Villery.
REMANDED with instructions.
DAUKSCH, C.J., and FRANK D. UPCHURCH, Jr., J., concur.