AUGUSTYN v. STATE (2002)

District Court of Appeal of Florida,Third District.

Joseph AUGUSTYN a/k/a Edward Baldwin, Appellant, v. The STATE of Florida, Appellee.

No. 3D01-2704.

Decided: March 27, 2002

Before LEVY, GODERICH, and GREEN, JJ.

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Attorney General, for appellant. Robert A. Butterworth, Attorney General and Marni A. Bryson, Assistant Attorney General, for appellee.

Contrary to the appellant's argument advanced on appeal, the trial court properly denied his motion to suppress his oral incriminating statements where such statements were made during a consensual encounter with the police and not during the course of a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Caso v. State, 524 So.2d 422, 424 (Fla.1988); Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999). The appellant, however, is correct (as the state appropriately concedes) that his sentence of 42 months imprisonment followed by 5 years probation for the third degree felony of forgery must be reversed where it exceeds the five year statutory maximum. See Folsom v. State, 638 So.2d 591 (Fla. 3d DCA 1994) (defendant's period of incarceration plus probation may not exceed the five year maximum for a third degree felony). Accordingly, we vacate the appellant's sentence on this charge and remand for resentencing.

Affirmed in part, remanded in part with directions.

PER CURIAM.

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