Opinion
No. 79-2027.
November 7, 1980.
Appeal from the Circuit Court for Palm Beach County, Carl H. Harper, J.
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
The appellant contends that the trial court erred in imposing a two year term in prison as a special condition to appellant's five year term of probation for grand theft and also claims error in the denial of his motion for new trial.
We find no error in the denial of the motion for new trial. However, the Supreme Court has recently held that an order of incarceration for one year or more imposed as a condition of probation is illegal. Villery v. The Florida Parole Probation Commission, 396 So.2d 1107 (1980). Also see Russell v. State, 386 So.2d 285 (Fla. 4th DCA 1980). The two year term involved herein is clearly illegal under Villery.
Accordingly, the judgment of conviction is affirmed but the order of probation is reversed with directions for further proceedings in accord with the Supreme Court's opinion in Villery, supra.
BERANEK and HURLEY, JJ., concur.