Augustyn v. State ( 2002 )

PER CURIAM.

Contrary to the appellant’s argument advanced on appeal, the trial court properly denied his motion to suppress his oral incriminating statements where such statements were made during a consensual encounter with the police and not during the course of a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Caso v. State, 624 So.2d 422, 424 (Fla.1988); Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999). The appellant, however, is correct (as the state appropriately concedes) that his sentence of 42 months imprisonment followed by 5 years probation for the third degree felony of forgery must be reversed where it exceeds the five year statutory maximum. See Folsom v. State, 638 So.2d 591 (Fla. 3d DCA 1994) (defendant’s period of incarceration plus probation may not exceed the five year maximum for a third degree felony). Accordingly, we vacate the appellant’s sentence on this charge and remand for resen-tencing.

Affirmed in part, remanded in part with directions.