Summary
holding that a defendant sentenced to one year probation for a first degree misdemeanor must receive credit for all time previously served in the county jail against the term of probation so that the combination of both would not exceed the statutory maximum
Summary of this case from Grissinger v. StateOpinion
No. 89-866.
March 15, 1990.
Appeal from the Circuit Court, Volusia County, Gayle S. Graziano, J.
James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Fleming Lee, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant was convicted of battery, a first degree misdemeanor. The trial judge placed him on probation for one year but refused to allow the appellant credit for 198 days served in the county jail awaiting trial.
Section 775.082(4)(a), Florida Statutes (1987) provides that the maximum penalty for a first degree misdemeanor is imprisonment for 1 year. The term of probation cannot exceed the maximum penalty provided by law, Williams v. State, 402 So.2d 537 (Fla. 5th DCA 1981), nor may the total penalty of probation and incarceration exceed the statutory maximum. See McCray v. State, 517 So.2d 770 (Fla. 2d DCA 1988); Davis v. State, 384 So.2d 53 (Fla. 2d DCA 1980). Accordingly, this cause is remanded with instructions to allow credit for time served against the term of probation.
Additionally, the appellant alleges and the State does not dispute that costs were imposed without notice. The imposition of costs is therefore stricken. Mays v. State, 519 So.2d 618 (Fla. 1988).
Conviction AFFIRMED; sentence MODIFIED and REMANDED with instructions.
COWART and PETERSON, JJ., concur.