State v. Davis , 721 So. 2d 1243 ( 1998 )

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721 So. 2d 1243 (1998)
STATE of Florida, Appellant,
v.
Cleveland DAVIS, Appellee.
No. 98-0324.
District Court of Appeal of Florida, Fourth District.
December 23, 1998.
Robert A. Butterworth, Attorney General, Tallahassee, and Lara J. Edelstein, Assistant Attorney General, Fort Lauderdale, for appellant.

No brief filed for appellee.

SHAHOOD, J.

The State of Florida appeals from sentences imposed by the trial court in three concurrent orders on the grounds that such orders are illegal. We agree.

Appellee entered a plea of nolo contendere to each of three cases and was sentenced by the court under the Florida Youthful Offender Statute. In each case, the trial court withheld adjudication and sentenced appellee as a youthful offender with one year and one day in the Florida State Prison to be followed by two years probation, to run concurrently with credit for time served.

As a general rule, adjudication cannot be withheld if a defendant is incarcerated. See State v. Oates, 610 So. 2d 522 (Fla. 2d DCA 1992). However, adjudication can be withheld under the Youthful Offender Act if the incarceration is a condition of probation and the term of incarceration does not exceed 364 days. See id.; § 958.04(2)(c), Fla. Stat. (1997).

*1244 This case is controlled by State v. Butler, 23 Fla. L. Weekly D 2187 (Fla. 4th DCA Sept. 23,1998). In a virtually identical situation to the instant case, the Butler court reversed the trial court's imposition of a split sentence under Youthful Offender statute, section 985.04(2)(c), and adopted the reasoning set forth in Oates. See id. In that case, the trial court withheld adjudication, but sentenced the defendant to 18 months in prison, followed by one year on probation. This court held that as in Oates, the sentence imposed by the trial court was improper and unauthorized under the Youthful Offender Statute. See id.

As in Butler, we vacate Davis' sentence and remand with instructions that, upon adjudication of guilt, he may again be sentenced to incarceration, or, alternatively, the court may withhold adjudication and sentence him to a term of incarceration as a condition of probation so long as the incarcerative portion does not exceed 364 days. See Butler.

REVERSED.

KLEIN and GROSS, JJ., concur.