Fance v. State , 645 So. 2d 188 ( 1994 )

645 So. 2d 188 (1994)

Ell FANCE, a/k/a Daddy-O, Appellant,
v.
The STATE of Florida, Appellee.

No. 94-2384.

District Court of Appeal of Florida, Third District.

December 7, 1994.

Ell Fance, a/k/a Daddy-O, in pro. per.

Robert A. Butterworth, Atty. Gen., and Mark C. Katzef, Asst. Atty. Gen., for appellee.

Before HUBBART and JORGENSON and GERSTEN, JJ.

PER CURIAM.

This is an appeal by the defendant Ell Fance from a trial court order denying his motion to correct an illegal sentence filed pursuant to Fla.R.Crim.P. 3.800(a). Upon the state's confession of error which we think is well taken, we reverse the order appealed from and remand the cause to the trial court with directions to vacate the twelve-year sentence imposed upon the defendant for the third-degree felony of organized fraud [§ 817.034(4)(a)(3), Fla. Stat. (1991)] because the sentence exceeds the statutory maximum penalty of five years imprisonment for this offense. It is well settled that for offenses committed prior to January 1, 1994, as here, a sentence may not exceed the statutory maximum penalty for that offense, § 921.001(5), Fla. Stat. (1991) — although the rule has been changed for offenses, unlike this case, committed on or after January 1, 1994. § 921.0014(1), Fla. Stat. (1993) (A sentence within the sentencing guidelines may be imposed even if it exceeds the statutory maximum sentence provided for that offense.).

Upon vacation of the twelve-year sentence for organized fraud, the trial court is directed to resentence the defendant for this offense to a term of imprisonment not exceeding five years. In all other respects, however, we affirm the order under review.

Affirmed in part; reversed in part and remanded.