Bush v. State , 1976 Fla. App. LEXIS 15620 ( 1976 )

DOWNEY, Judge.

On September 30,1974, appellant pleaded guilty to the charge of selling or delivering a controlled substance on May 4, 1974, in violation of Section 893.13(l)(a)(2), Florida Statutes (1974). On February 3, 1975, the court entered a judgment of guilty and ordered that appellant be committed to the Division of Corrections for a term of five years. The court also ordered that after appellant had served two years of the five year term, he was to be placed on probation for three years.

At the time of the offense, May 4, 1974, the trial court did not have the authority to use the split sentence procedure unless punishment by imprisonment in the county jail was prescribed. However, at the time of sentencing the legislature had expanded the authority to use split sentence procedure to include felonies. Appellant contends that the trial court did not have authority to sentence him to a split sentence under Section 948.01(4), Florida Statutes, as amended effective July 1, 1974. We agree upon authority of Williams v. State, 332 So.2d 33 (Fla. 4th DCA 1976).

Accordingly, the sentence appealed from is reversed and the cause is remanded with directions to vacate the sentence and resen-tence appellant.

MAGER, C. J., and ALDERMAN, J., concur.