Opinion
No. 97-868.
November 17, 1998.
An appeal from the Circuit Court for Wakulla County; Charles McClure, Judge.
Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Attorney General; Carolyn J. Mosely, Assistant Attorney General, Tallahassee, for appellee.
McDowell challenges his conviction and sentence for the offense of lewd and lascivious assault on a child.
Appellant raises a number of issues on appeal, only one of which has merit. Appellant's sentence to 15 years of probation with the special condition that he serve 85 months in prison fails to comport with section 948.03(6), Florida Statutes (1977). In pertinent part, this subsection reads, "if the court . . . imposes a period of incarceration as a condition of probation or community control, the period shall not exceed 364 days." § 948.03(6), Fla. Stat. (1977). Therefore, we affirm the conviction, but vacate the sentence and remand for resentencing.
JOANOS, WOLF and LAWRENCE, JJ., concur.