Opinion
Case No. 96-473
Opinion filed November 15, 1996 Rehearing Denied December 19, 1996
Appeal from the Circuit Court for Citrus County, John P. Thurman, Judge.
James B. Gibson, Public Defender, and M.A. Lucas, Assistant public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and E. Paul Stanley, Assistant Attorney General, Daytona Beach, for Appellee.
Whitehead appeals from his sentence imposed after entering into a plea agreement with the state. The state concedes that the sentence he received of six months probation for reckless driving was illegal. Section 316.192(2)(a) provides:
§ 316.192, Fla. Stat. (1995).
Any person convicted of reckless driving shall be punished: (a) upon a first conviction, by imprisonment for a period of not more than 90 days or by fine of not less than $25.00 nor more than $500.00, or by both such fines and imprisonment.
The record does not show that Whitehead had previously been convicted of reckless driving. Thus the probationary term could not have exceeded 90 days. Nor could Whitehead have agreed to an illegal sentence, one that exceeds the maximum statutory term. Cheney v. State, 640 So.2d 103 (Fla. 1994); Dyer v. State, 629 So.2d 285 (Fla. 5th DCA 1993); Conrey v. State, 624 So.2d 793 (Fla. 5th DCA 1993). Accordingly, we vacate the sentence and remand for resentencing.
Sentence VACATED; REMANDED for resentencing.
COBB and THOMPSON, JJ., concur.