Ware v. State , 1981 Fla. App. LEXIS 20710 ( 1981 )

PER CURIAM.

Ware was adjudged guilty of burglary and was sentenced to a term of imprisonment for three years. The sentence provided that eighteen (18) months were to be served in prison followed by three and one-half (8*6) years probation. Ware challenges the legality of this sentence.

Subsequent to the sentencing hearing herein, the Florida Supreme Court issued its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). In Villery, the court held that:

[IJncarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(3), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation. . . . [T]his decision applies retroactively.

Id. at 1111 (emphasis supplied). Accordingly, the sentence is reversed, and this cause is remanded for resentencing pursuant to the guidelines set forth in Villery, supra.

BOOTH, SHAW and WENTWORTH, JJ., concur.