ROSA v. STATE, 592 So.2d 769 (Fla.App. 5 Dist. 1992)

JESUS ROSA, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

Nos. 91-753, 91-770.District Court of Appeal of Florida, Fifth District.
January 24, 1992.

Appeal from the Circuit Court, Orange County, Jeffords D. Miller, J.

James B. Gibson, Public Defender, and James T. Cook, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca R. Wall, Asst. Atty. Gen., Daytona Beach, for appellee.

Page 770

HARRIS, Judge.

Jesus Rosa pled nolo contendere to five counts of robbery. He was sentenced to ten years probation with four years incarceration with the Department of Corrections “as a condition of probation.” He appeals. We reverse.

Although the amount of incarceration appears to be within the guidelines range, the manner in which it was imposed (condition of probation) makes the sentence illegal. Section 948.03(8), Florida Statutes (1989) limits the period of incarceration as a condition of probation to no more than 364 days. Of course, the court can always correct an illegal sentence. Rule 3.800(a), Florida Rules of Criminal Procedure.

REVERSED and REMANDED for resentencing.

DAUKSCH and W. SHARP, JJ., concur.