Opinion
No. 97-04446
Opinion filed July 8, 1998.
Appeal from the Circuit Court for Pinellas County; Brandt C. Downey, III, Judge.
Bob Dillinger, Public Defender, and Dwight Wolfe, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Jean-Jacques Darius, Assistant Attorney General, Tampa, for Appellee.
The defendant, Jason Szuba, appeals the fifty-three month prison sentence imposed upon his violation of probation. We reverse and remand for resentencing.
The trial court originally imposed a true split sentence upon the defendant by imposing a three-year prison sentence and then suspending it and replacing it with a two-year term of community control, followed by a four-year term of probation. See generally State v. Powell, 703 So.2d 444, 445-46 (Fla. 1997) (denominating such a sentence as a "true split sentence"). As the defendant correctly argued below, the trial court was without authority to order new incarceration that exceeded the remaining balance of the defendant's suspended sentence. See Poore v. State, 531 So.2d 161, 164 (Fla. 1988).
Accordingly, we reverse and remand for the defendant to be resentenced to a period not to exceed the three-year suspended portion of the original sentence. The defendant should be awarded credit for any time served.
Reversed and remanded.
BLUE, A.C.J., and FULMER and WHATLEY, JJ., Concur.