RAMON RECHAYE ROSS v. STATE OF FLORIDA (2023)

Ramon Ross was convicted after a jury trial of two counts of sexual battery without the use of physical force and violence likely to cause serious personal injury. He was sentenced to concurrent terms of fifteen years in prison followed by fifteen years on sex offender probation for each count.

On appeal, he challenges his convictions and sentences on three grounds. As to the second and third grounds, we affirm without further discussion. But as to the first ground, the State concedes that Ross was erroneously sentenced for two first-degree felonies when he was only convicted of second-degree felonies. See § 794.011(5)(b), Fla. Stat. (2018). The statutory maximum sentence for a second-degree felony is fifteen years in prison. § 775.082(3)(d), Fla. Stat. (2018). A probationary split sentence that exceeds the maximum period of incarceration provided for by statute is an illegal sentence. See State v. Holmes, 360 So. 2d 380, 383 (Fla. 1978) (holding, among other things, “that a trial judge is authorized by Section 948.01(4)^* to sentence a defendant to a period of incarceration followed by a period of probation” and “that the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged”). Therefore, Ross’ thirty-year sentences on each count are illegal. Based upon the State's proper concession of error, we vacate the sentences and remand for resentencing.

Judgment AFFIRMED; sentencing order VACATED; REMANDED for resentencing.

FOOTNOTES

FOOTNOTE.   The relevant provisions of section 948.01(4), Florida Statutes (1975), are now found in section 948.012, Florida Statutes.

RAY, J.

OSTERHAUS and TANENBAUM, JJ., concur.