BURNEY v. STATE (1997)

District Court of Appeal of Florida,Second District.

James W. BURNEY, Appellant, v. STATE of Florida, Appellee.

No. 97-03730.

Decided: December 31, 1997

James W. Burney challenges the trial court's denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Burney's motion argued several grounds for relief, one of which has merit.

In his motion Burney alleges that his sentence is illegal because the trial court included hard labor as a sentencing condition.

The court in Zygadlo v. State, 676 So.2d 1015 (Fla. 5th DCA 1996), held that a sentencing condition of hard labor, when such condition was not authorized by statute, is an issue appropriately raised in a motion to correct illegal sentence. Effective July 2, 1970, chapter 70-340, section 180, Laws of Florida, repealed chapter 922, which allowed a sentence to hard labor. As Burney committed his crimes August 30, 1971, a sentencing condition of hard labor constitutes an illegal sentence.

Accordingly, we affirm the trial court's order in all respects except that we remand to the trial court to strike the condition of hard labor from Burney's sentence as there was no statute to authorize this condition.

Affirmed in part, reversed in part, and remanded with directions.

PER CURIAM.

THREADGILL, A.C.J., and PATTERSON and QUINCE, JJ., concur.

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