MOYER v. STATE (1998)

District Court of Appeal of Florida,Fifth District.

Scott Alan MOYER, Appellant, v. STATE of Florida, Appellee.

No. 97-2418.

Decided: August 14, 1998

Jonathan P. Culver, Ocala, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

Scott Allen Moyer was convicted of causing serious bodily injury to another while driving under the influence, a third degree felony, and a violation of section 316.193(3)(a), (b), (c)2, Florida Statutes (1997).

We find no error in the conviction, but vacate the sentence and remand for resentencing. The state concedes that the split sentence of 54 months incarceration, followed by five years probation, exceeds both the statutory maximum of five years for a third degree felony and the 90 month upper end of Moyer's sentencing guidelines range. See Ortiz v. State, 696 So.2d 916 (Fla. 5th DCA 1997).

We also note that the judgment reflects that Moyer was convicted of a second degree felony rather than a third degree felony. This error shall also be corrected upon remand.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

PER CURIAM.

DAUKSCH, HARRIS and PETERSON, JJ., concur.

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