DELGADO v. STATE (1998)

John F. Delgado appeals the denial of his post conviction motion to challenge the sentences imposed, upon his 1994 violation of probation, for several crimes to which he pled guilty in 1991.   As all but one of Delgado's challenges are without merit, we hereby affirm the sentences as to Counts I (burglary of a structure), II (burglary of a conveyance), III (armed robbery), IV (armed robbery), and VI (unlawful possession of a firearm while engaged in a criminal offense).

However, we find, and the State concedes, that the trial court improperly sentenced Delgado on Count VII (grand theft auto, third degree).   Pursuant to his guilty plea in 1991, Delgado was sentenced to one year community control on Count VII, and to five years probation on Counts I-IV, and VI,¹ to follow his one year of community control.   Delgado completed the community control,² and began his probation period on March 23, 1994.   He violated probation on October 28, 1994, and, on April 21, 1995, his probation was revoked and the trial court sentenced him to seventeen years in prison on Counts I-IV, VI, and VII, all to run concurrently.   On June 26, 1997, the trial court denied Delgado's prior Rule 3.850 motion, but corrected his sentence to fifteen years on Count VI and five years on Count VII, to run concurrently with the seventeen-year sentences on Counts I-IV.

As Delgado had already completed the one-year community control sentence on Count VII at the time of his probation violation, the trial judge's inclusion of that count in the resentencing upon revocation of probation was improper.   Therefore, the five-year sentence Delgado received on Count VII must be vacated.

Accordingly, the order under review is affirmed as to sentences on Counts I-IV, and VI;  reversed as to the sentence on Count VII, and remanded for vacation of that sentence, consistent with this opinion.

FOOTNOTES

1.   Count V (aggravated battery) was nolle prossed by the State.

2.   Delgado did violate community control, but was merely resentenced to continue community control with the addition of electronic monitoring;  the time period for community control was not extended.

PER CURIAM.