DUNN v. STATE (1999)

Michael Dunn (Dunn) appeals his sentence for sale of imitation cocaine, arguing that the sentence is illegal and constitutes fundamental error.   We agree and reverse.

A jury convicted Dunn of the sale of cocaine (count one), and the sale of imitation cocaine (count two).   Dunn committed these crimes on June 21, 1997 and June 27, 1997 respectively, in Gulf County.   The trial judge orally sentenced Dunn on count one to 28 months in prison followed by probation until February 5, 2008, and concurrently on count two to 28 months in prison.   However, the written sentence on count two added an unannounced term of probation until February 6, 2008.   The sale of imitation cocaine is a third-degree felony, punishable by a maximum sentence of five years. §§ 817.563(1), 775.082(3)(d), Fla. Stat. (1997).   Dunn correctly argues that his sentence on count two is illegal and constitutes fundamental error.   See Mason v. State, 710 So.2d 82 (Fla. 1st DCA 1998);  see also Johnson v. State, 701 So.2d 382 (Fla. 1st DCA 1997).

We therefore affirm without discussion Dunn's convictions and his sentence on count one.   We however reverse on count two, and remand with directions that the probationary term on count two be vacated to conform to the court's oral pronouncement of sentence.   Appellant is not required to be present for correction of his sentence.

PER CURIAM.

WOLF, KAHN and LAWRENCE, JJ., CONCUR.