Turner v. State

COBB, Judge.

The appellant, Edward Turner pled guilty to capital sexual battery, a “life felony.” He was sentenced, pursuant to agreement, to 40 years incarceration followed by life probation. This sentence, as conceded by the state, exceeds the statutory maximum. Taylor v. State, 573 So.2d 173 (Fla. 5th DCA 1991).

The error here was the imposition by the trial court of a probationary split sentence instead of a true split sentence. See Poore v. State, 531 So.2d 161 (Fla.1988). The latter is lawful but the former is not, where, as here, the incareerative portion of the split sentence is 40 years for a life felony. The trial court may, upon remand, impose a sentence of life incarceration, suspended after serving 40 years of incarceration, with the balance of the sentence thereafter to be served on probation. This is the sentence that was bargained for. See generally, Wood v. State, 582 So.2d 751 (Fla. 5th DCA 1991) (resentence consistent with original sentencing plan is not vindictive).

The sentence is reversed and the ease is remanded for resentencing.

PETERSON, J., concurs. W. SHARP, J., concurs in result only, with opinion.