Oliver v. State

Feb 3, 1999

97-2422

Versions:727 So. 2d 271

1999 WL 44352

Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Debra Rescigno, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Terry L. Oliver, appeals the trial court‘s sentencing order of April 15, 1997. This is Oliver‘s second appeal in this matter. The first appeal resulted in a remand for resentencing. See Oliver v. State, 687 So.2d 974 (Fla. 4th DCA 1997). Upon remand, Oliver received a guidelines sentence of twelve years. Oliver appeals, contending that he should receive the original downward departure sentence of two years community control followed by five years probation as recommended by the Department of Corrections. The state asserts that Oliver was properly sentenced on remand, and that the original downward departure sentence was improper.

The state must seek correction of an improper downward departure sentence through an appeal. See Oliver; see also Gartrell v. State, 626 So.2d 1364, 1365 (Fla. 1993). Since the state did not timely appeal Oliver‘s downward departure sentence of August 18, 1995, and since its verbal 3.800(a) motion to correct the sentence cannot serve as a substitute for a notice of appeal, we must reverse under Gartrell. See id.

We therefore reverse and remand for reinstatement of the original sentence of two years community control followed by five years probation, special condition ninety days jail for Counts I and II, and direct that as to Counts III and IV, Oliver shall receive credit time served as originally ordered.

AFFIRMED.

KLEIN, GROSS, JJ., and BAILEY, JENNIFER D., Associate Judge, concur.