Knox v. State , 1991 Fla. App. LEXIS 12309 ( 1991 )

PER CURIAM.

The appellant seeks review of the sentence imposed upon a violation of probation. The appellant was sentenced for a grand theft offense to two and one half years in prison followed by two and one half years on probation. After serving the prison sentence, the appellant began the probationary period. An affidavit of violation was filed and the appellant admitted the violations. The court then sentenced the appellant to five years probation with a condition that he serve 365 days in the county jail.

The sentence imposed upon the violation of probation was illegal because it exceeds the maximum sentence which a court may impose. See Swift v. State, 362 So.2d 723 (Fla. 2d DCA 1978). The maximum sentence that may be imposed upon the appellant cannot exceed five years, the statutory maximum for a third degree felony, minus the prison sentence already served.

Accordingly, we affirm the judgment but reverse the sentence and remand to the trial court to sentence the appellant in accordance with this opinion.

SCHOONOVER, C.J., and HALL and THREADGILL, JJ., concur.