Opinion
No. 80-1564.
October 14, 1981.
Appeal from the Circuit Court, Martin County, Dwight L. Geiger, J.
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
ON REHEARING
We withdraw our opinion issued on August 5, 1981 in this cause. The Public Defender's motion to withdraw is granted and appellant's conviction is affirmed. Although appellant's sentence is in violation of Villery v. Florida Parole Probate Commission, 396 So.2d 1107 (Fla. 1981), since appellant did not make application to have it corrected, we will not remand for resentencing. As so aptly pointed out by the Public Defender, under Villery, appellant may, on resentencing, be subject to a longer term of imprisonment than he is presently serving. Accordingly, appellant should be afforded the option of declining correction of his sentence.
Nothing in this opinion prevents appellant from filing a motion to correct an illegal sentence pursuant to Rule 3.800, Florida Rules of Criminal Procedure.
AFFIRMED.
DOWNEY, MOORE and HERSEY, JJ., concur.