Opinion
No. 95-1709.
May 8, 1996.
An appeal from the Circuit Court for Dade County; Amy Steele Donner, Judge.
Bennett H. Brummer, Public Defender, and Julie M. Levitt, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General, and Adam M. Schenck, Certified Legal Intern, for appellee.
Before NESBITT, GERSTEN and FLETCHER, JJ.
Based on the state's proper confession of error and our independent examination of the record we: (1) reverse the cause with directions to correct the judgment form to reflect that the violation of section 893.13 (1)(f), Florida Statutes (1991), is a third degree felony rather than a second degree felony; and (2) vacate the ten year sentence imposed for this violation, and remand for resentencing, as the statutory maximum for a third degree felony is five years. § 775.082 (3)(d), Fla.Stat. (1991). Appellants remaining point on appeal is not meritorious. Accordingly, the final order revoking the defendant's probation is affirmed in all other respects.
Affirmed in part, vacated in part, and remanded with directions and for resentencing.