Opinion
No. 90-1011.
December 21, 1990.
An appeal from the Circuit Court for Bay County; Clinton E. Foster, Judge.
Nancy A. Daniels, Public Defender and Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant was charged with uttering a forged instrument and forgery. Appellant pled nolo contendere to the charges and was ultimately placed on probation. Appellant was charged with a violation of her probation and the trial court found her in violation, revoked her probation and sentenced her to five years of imprisonment on Count I and three years imprisonment on Count II, the sentences to be served consecutively. The maximum guidelines sentence (with one-cell bump) is 3 1/2 years incarceration. Appellant argues, therefore, the sentence received was illegal.
The state has filed an answer brief in which the state concedes that appellant's maximum sentence of incarceration is 3 1/2 years. We agree. The state also concedes that with applicable gain time, appellant has already served a sentence in excess of the maximum lawful sentence.
Accordingly, appellant's sentence is vacated and this case is remanded for resentencing appellant in accordance with this opinion.
The state having confessed error and the state having joined in appellant's motion to expedite this appeal, the motion to expedite is granted. No motion for rehearing will be entertained and this court's mandate shall issue forthwith.
JOANOS, ZEHMER and ALLEN, JJ., concur.