Holmes v. State

343 So. 2d 632 (1977)

Ricky W. HOLMES et al., Appellants,
v.
STATE of Florida, Appellee.

No. 76-78.

District Court of Appeal of Florida, Fourth District.

February 11, 1977. Rehearing Denied April 7, 1977.

Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.

GREEN, OLIVER L., Jr., Associate Judge.

The three Appellants were each found guilty of Breaking and Entering with Intent to Commit a Misdemeanor and have appealed upon an alleged insufficiency of evidence to support the verdict and upon alleged excessive sentences. We affirm the Judgment, but find the sentences to be excessive.

Each of the Appellants was sentenced to combined terms of imprisonment and probation in excess of the five years which was the maximum penalty then permitted for the crime of Breaking and Entering with Intent to Commit a Misdemeanor. Section 775.082(3)(d), Florida Statutes (1975).

The Appellants Ricky W. Holmes and Edgar Allen Holmes were each sentenced to three years' incarceration of which one and one-half years was suspended, and the period of incarceration was to be followed by four years' probation. The probationary period for each is thereby excessive by the period of six months.

The Appellant Helen Ann Small Holmes was sentenced to five years' incarceration, of which two years was suspended, and the period of incarceration was to be followed by four years' probation. Her probationary sentence was thereby excessive by two years.

It is now uniformly held that although a trial judge is permitted to enter a split sentence, the combined period cannot exceed the maximum period of time provided for that particular crime. Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So. 2d 638 (Fla.2d DCA 1976). Also see State v. Jones, 327 So. 2d 18 (Fla. 1976).

For the foregoing reasons we modify the sentences appealed from in the following ways: (a) the probationary periods of sentences of Ricky Holmes and Edgar Holmes are each reduced by six months; (b) the probationary period of the sentence of Helen Holmes is reduced by two years.

The judgments and sentences are hereby affirmed, as modified.

DOWNEY and DAUKSCH, JJ., concur.