89-866 | Fla. Dist. Ct. App. | Mar 15, 1990
Kenneth Leon BALDWIN, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fifth District.
James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Fleming Lee, Asst. Atty. Gen., Daytona Beach, for appellee.
GOSHORN, Judge.
Appellant was convicted of battery, a first degree misdemeanor. The trial judge *174 placed him on probation for one year but refused to allow the appellant credit for 198 days served in the county jail awaiting trial.
Section 775.082(4)(a), Florida Statutes (1987) provides that the maximum penalty for a first degree misdemeanor is imprisonment for 1 year. The term of probation cannot exceed the maximum penalty provided by law, Williams v. State, 402 So. 2d 537" court="Fla. Dist. Ct. App." date_filed="1981-08-19" href="https://app.midpage.ai/document/johnson-v-darnell-7512313?utm_source=webapp" opinion_id="7512313">402 So. 2d 537 (Fla. 5th DCA 1981), nor may the total penalty of probation and incarceration exceed the statutory maximum. See McCray v. State, 517 So. 2d 770" court="Fla. Dist. Ct. App." date_filed="1988-01-06" href="https://app.midpage.ai/document/mccray-v-state-1148095?utm_source=webapp" opinion_id="1148095">517 So. 2d 770 (Fla. 2d DCA 1988); Davis v. State, 384 So. 2d 53" court="Fla. Dist. Ct. App." date_filed="1980-06-04" href="https://app.midpage.ai/document/davis-v-state-7503517?utm_source=webapp" opinion_id="7503517">384 So. 2d 53 (Fla. 2d DCA 1980). Accordingly, this cause is remanded with instructions to allow credit for time served against the term of probation.
Additionally, the appellant alleges and the State does not dispute that costs were imposed without notice. The imposition of costs is therefore stricken. Mays v. State, 519 So. 2d 618" court="Fla." date_filed="1988-02-04" href="https://app.midpage.ai/document/mays-v-state-1736075?utm_source=webapp" opinion_id="1736075">519 So. 2d 618 (Fla. 1988).
Conviction AFFIRMED; sentence MODIFIED and REMANDED with instructions.
COWART and PETERSON, JJ., concur.