Opinion
No. 93-1892.
December 3, 1993.
An appeal from the circuit court for Leon County; William L. Gary, Judge.
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Joe S. Garwood, Asst. Atty. Gen., Tallahassee, for appellee.
Carl Smith appeals a final judgment that revokes his probation for burglary and grand theft and imposes a 6-year prison sentence for the burglary and a concurrent 5-year prison term for the grand theft. Smith raises two contentions: (1) the 6-year sentence for the burglary is illegal because it exceeds the one-cell bump up from the original scoresheet range, or a maximum of 5 1/2 years in prison, which he could have received for violating probation; and (2) the 5-year sentence for the grand theft is illegal because prior to violating probation, he had already served a portion of the original sentence of 5 years' imprisonment to be followed by a 3-year period of probation which exceeds the statutory maximum term of 5 years' imprisonment for the offense.
We reverse the 6-year sentence for the burglary in accordance with Hosmer v. State, 523 So.2d 184 (Fla. 1st DCA 1988), and remand for resentencing at which the circuit court must state reasons in the event that he chooses to impose a departure sentence.
We also reverse the 5-year sentence for the grand theft because it is undisputed that Smith has already served the statutory maximum term for that offense.
REVERSED and REMANDED.
ZEHMER, C.J., and ERVIN and WEBSTER, JJ., concur.