DAVEY v. STATE (1998)

District Court of Appeal of Florida,Fourth District.

Thomas DAVEY, Appellant, v. STATE of Florida, Appellee.

No. 97-3384.

Decided: August 19, 1998

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa and Don M. Rogers, Assistant Attorneys General, West Palm Beach, for appellee.

We affirm appellant's conviction for the charge of resisting arrest with violence. Appellant was sentenced to forty months in state prison, followed by three years probation. This sentence exceeded the five-year statutory maximum by sixteen months. Accordingly, such a sentence is illegal. See Harriel v. State, 710 So.2d 102 (Fla. 4th DCA 1998).

The State concedes, and we agree that this case must be remanded with directions to the trial court to impose a legal sentence as to that count. On remand, the record should also be corrected to reflect that the appellant was convicted of, and sentenced for, violation of section 843.01, Florida Statutes, resisting an officer with violence. The judgment erroneously reflects appellant's offense as section 843.02, Florida Statutes, resisting an officer without violence, a misdemeanor.

Affirmed; Remanded for resentencing.

PER CURIAM.

DELL, SHAHOOD and TAYLOR, JJ., concur.

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