Opinion
No. 1D18-1483
01-29-2020
Rickey STEVENS, Appellant, v. STATE of Florida, Appellee.
Baya Harrison, III, Monticello, for Appellant. Ashley Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
Baya Harrison, III, Monticello, for Appellant.
Ashley Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Appellant was erroneously sentenced to twelve years in state prison for violating probation on a count that was not subject to probation (Count II). See Armstrong v. State , 622 So. 2d 576, 577 (Fla. 5th DCA 1993) (holding that defendant could not be resentenced upon violation of probation on count for which he was originally sentenced to straight term of imprisonment with no probation). The trial court attempted to correct the mistake by granting Appellant's rule 3.800(b)(2) motion and entering a corrected judgment and sentence, but it lacked jurisdiction to do so because 60 days had already passed to rule on the motion. Fla. R. Crim. P. 3.800(b)(2)(B) ("[I]f the trial court does not file an order ruling on the motion within 60 days, the motion shall be deemed denied."); see also Campbell v. State , 789 So. 2d 1213, 1214 (Fla. 1st DCA 2001). As the trial court recognized, and the state has conceded, Appellant is entitled to relief. Accordingly, we reverse and remand with instructions that a new judgment and sentence be imposed, that Appellant's sentence as to Count II be vacated, and that he be resentenced to twelve years in state prison for violation of probation as to Count I.
REVERSED and REMANDED .
Ray, C.J., and Roberts and Makar, JJ., concur.