Summary
In Spencer v. State, 764 So.2d 576 (Fla. 2000), cited by Foster, the Florida supreme court merely remanded for further proceedings in light of Maddox v. State, 760 So.2d 89 (Fla. 2000).
Summary of this case from Foster v. StateOpinion
No. SC93430
Opinion filed July 13, 2000
Application for Review of the Decision of the District Court of Appeal — Direct Conflict Fifth District — Case No. 5D97-2064, (Osceola County).
James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, and Belle B. Schumann and Wesley Heidt, Assistant Attorneys General, Daytona Beach, Florida, for Respondent.
We have for review Spencer v. State, 712 So.2d 446 (Fla. 5th DCA 1998), a decision of the Fifth District Court of Appeal affirming on the authority of its opinion in Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998), approved in part, disapproved in part, 25 Fla. L. Weekly S367 (Fla. May 11, 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla. 1981).
Spencer claims that fundamental sentencing error occurred when he was sentenced pursuant to a plea agreement to simultaneous periods of incarceration and probation. The State has not responded to these allegations, instead arguing only that the error is not preserved for appellate review. Because the merits of the sentencing error at issue in this case are not adequately briefed, we quash the decision below and remand for further proceedings in light of our opinion in Maddox v. State, 25 Fla. L. Weekly S367 (Fla. May 11, 2000).
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.