Opinion
No. 81-2103.
August 10, 1982.
Appeal from the Circuit Court, Dade County, Marshall H. Ader, J.
Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender and Kathleen Mahoney, Certified Legal Intern, for appellant.
Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before HUBBART, C.J., and HENDRY and SCHWARTZ, JJ.
The sentence which is under review by this appeal is reversed and the cause is remanded to the trial court for resentencing under Chapter 958, Florida Statutes (1981) (The Youthful Offender Act). The trial court erroneously ordered that the defendant Bobby Nairn not be eligible for parole for three (3) years under the adult sentencing statute, Section 775.087(2), Florida Statutes (1981). We have held that this statute [§ 775.087(2), Fla. Stat. (1981)] is inapplicable when a defendant, as here, is sentenced as a youthful offender under Chapter 958, Florida Statutes (1981). Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981) (decided subsequent to the sentencing in this cause). We, accordingly, have no alternative but to reverse and remand for resentencing under Chapter 958, Florida Statutes (1981).
The judgment of conviction, however, which is also under review by this appeal is affirmed. The prosecuting attorney's comment to the jury attacked on this appeal, although technically improper, had no impact whatever, in our view, on the outcome of this case, and, accordingly, presents no reversible error. § 924.33, Fla. Stat. (1981).
Affirmed in part; reversed in part and remanded.