GONZALEZ v. STATE (1999)

District Court of Appeal of Florida,Fifth District.

Ruben GONZALEZ, Appellant, v. STATE of Florida, Appellee.

No. 98-2265.

Decided: August 20, 1999

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.

This is an appeal from a conviction and sentence in a case involving a lewd act on a child and possession of child pornography.

Although appellant reserved his right to appeal an order denying suppression of his inculpatory statements, there is no right to appeal the order because even if we ruled in his favor, the issue has not been shown to be dispositive. See § 924.06(3), Fla. Stat. (1997); Teague v. State, 728 So.2d 1203 (Fla. 5th DCA 1999).

We vacate his sentence in Count III because it exceeds the maximum. Five years is the maximum and he was given 4.625 years incarceration followed by 10.375 years probation. State v. Holmes 360 So.2d 380 (Fla.1978); see also, Quinn v. State, 692 So.2d 988 (Fla. 5th DCA 1997); Speights v. State, 711 So.2d 167 (Fla. 1st DCA 1998), quashed, Case No. 93,207, ---So.2d ---- (Fla. May 14, 1999).

Conviction AFFIRMED; sentence in Count III VACATED; REMANDED for resentencing.

DAUKSCH, J.

ANTOON, C.J., concurs. PETERSON, J., concurs specially in result only.

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