Byrd v. State

388 So. 2d 1362 (1980)

Tom Andrain BYRD, Appellant,
v.
STATE of Florida, Appellee.

No. 79-1758/T4-713.

District Court of Appeal of Florida, Fifth District.

October 15, 1980.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Asst. Public Defender, Appellate Division, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellant Tom Andrain Byrd was charged with burglary of a dwelling and grand theft. At the time of the offense, he was seventeen years old. Under section 39.04(2)(e)(4), Florida Statutes (1979), jurisdiction was vested in the circuit court.

Appellant moved to dismiss alleging that section 39.04(2)(e)(4) was unconstitutional. The motion was denied and he entered a plea of nolo contendere specifically reserving the right to appeal this denial. The count of grand theft was nol prossed.

The constitutionality of section 39.04(2)(e)(4) was recently upheld in State v. Cain, 381 So. 2d 1361 (Fla. 1980).

Appellant also contends that the court incorrectly sentenced him to fifty-two weeks in the county jail, less time served, plus five years probation. He claims this does not conform to the announced intention of the court and that it is illegal because it exceeds the statutory maximum. The state acknowledges the error, which was an inadvertent juxtaposition of the sentence in the order of judgment and sentence and argues that the intended sentence is a probationary term of five years with a condition that fifty-one weeks would be served in the county jail.

Therefore we remand for correction of the sentence.

COBB and SHARP, JJ., concur.