Conrey v. StateConrey v. State
Nоrman Conrey appeals the trial court‘s order which reinstatеd Conrey‘s probation for an additional two-year period рursuant to a plea agreement. Conrey contends that the trial court‘s order is illegal because the order extends his probаtion for a third-degree felony beyond the maximum five-year probationary period allowed by law.1 We agree and, thus, vacate the order extending probation and remand for further proceedings.2
On June 4, 1987, the trial court adjudicated Conrey guilty on two counts of carrying a concealed firearm, a third-degree felony, in violation of
On May 6, 1992, Conrey was charged with violating his probation. On August 14, 1992, Conrеy, pursuant to a plea agreement, pled guilty to violating his prоbation in exchange for being placed on probation for an additional two-year term. On September 29, 1992, the court entered a written order, nunc pro tunc August 14, 1992, which revoked Conrey‘s probation and reinstated him to probation pursuant to the plea agreement.
When imposing a term of probation, a court is not authorized to extеnd the term of probation beyond the period of maximum sentence. Kolovrat v. State, 574 So.2d 294, 297 (Fla. 5th DCA 1991). See also Moore v. State, 623 So.2d 795 (Fla. 1st DCA 1993); Ogden v. State, 605 So.2d 155, 158 (Fla. 5th DCA 1992). Because a court is powerless to extend a period of probation beyond the maximum permissible sentence, any such extension is illegal. Blackburn v. State, 468 So.2d 517, 518 (Fla. 1st DCA 1985); Watts v. State, 328 So.2d 223, 223 (Fla. 2d DCA 1976). The statutory maximum sentence for a third degrеe felony is five years; thus, the maximum probationary term that Conrey can receive is five years. Kolovrat, 574 So.2d at 297. Here, Conrey has received а total term of probation which exceeds five years. A trial court cannot impose an illegal sentence pursuant to а plea bargain. Williams v. State, 500 So.2d 501, 503 (Fla. 1986). See also Watkins v. State, 622 So.2d 1148 (Fla. 1st DCA 1993).
Accordingly, we vacate the trial court‘s order placing Conrey on probation and remand this cause to the trial court to enter an order placing Conrey on prоbation for a term which shall not result in Conrey being on probation for more than a total of five years or, alternatively, the statе may request the trial court to vacate the plea and set the probation violation matter for hearing. If a hearing is held and Conrey is found guilty of violating his probation, the trial court shall have thе option of sentencing pursuant to Williams v. State, 594 So.2d 273 (Fla. 1992) (sentence may be bumpеd up one cell for each violation of probation). Alsо, in the event Conrey is sentenced to incarceration, he is еntitled to be credited for time served as mandated by Tripp v. State, 622 So.2d 941 (Fla. 1993) (credit for time served on first offense must be awarded on sentence imposеd after revocation of probation on second offеnse).
ORDER VACATED; REMANDED.
GOSHORN and GRIFFIN, JJ., concur.