Daniel v. State

Full title: JAMES BYRDON DANIEL, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Oct 9, 1992

605 So. 2d 601 (Fla. Dist. Ct. App. 1992)

Opinion

No. 92-421.

October 9, 1992.

Appeal from the Circuit Court for Orange County; Daniel P. Dawson, Judge.

James B. Gibson, Public Defender, and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

We affirm the defendant's convictions and sentences except we vacate the defendant's fifteen year sentence on his grand theft conviction because grand theft is a felony of the third degree¹ and the fifteen year sentence exceeds both the statutory maximum prison term of five years² and the enhanced statutory maximum sentence of ten years provided under the habitual offender statute.³ See Inclima v. State, 570 So.2d 1034 (Fla. 5th DCA 1990) (sentence in excess of statutory maximum illegal even though to be served concurrent with legal sentence). Lewis v. State, 567 So.2d 50 (Fla. 5th DCA 1990).

1 Section 812.014(2)(c), Florida Statutes (1991).

2 See section 775.082(3)(d), Florida Statutes (1991).

3 Section 775.084(4)(a)3., Florida Statutes (1991).

SENTENCE ON GRAND THEFT CONVICTION VACATED; CAUSE REMANDED FOR RESENTENCING ON THAT OFFENSE.

DAUKSCH, COWART and GRIFFIN, JJ., concur.