Fluker v. State

PER CURIAM.

Appellant, Freddie Fluker, appeals the revocation of his probation (#94-227) and community control (#95-801). We affirm the revocations but reverse the sentences and remand for resentencing.

Appellant claims, and the State concedes, that his sentence of 30 months incarceration and 18 months probation in case no. 94-227 is illegal. We agree. Fluker had previously spent almost two years on probation. The total sanction, when the new sentence is added to the time already served, exceeds five years, and thus is illegal. See Francois v. State, 695 So.2d 695 (Fla.1997); Waters v. State, 662 So.2d 332 (Fla.1995); State v. Summers, 642 So.2d 742 (Fla.1994).

When appellant was first sentenced for violating his probation and community control, the State and trial court expressed the intent that appellant remain under supervision following incarceration to insure that he pays his restitution obligation in 94-227. Because the trial judge may wish to reconstruct the sentences, we remand both cases for resentencing to allow the trial court to determine how he wishes to allocate incarceration and probation.

MICKLE and DAVIS, JJ., and McDONALD, PARKER LEE, Senior Judge, concur.