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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
MICHAEL ALAN DAVIS,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D03-0149
STATE OF FLORIDA,
Appellee.
_________________________/
Opinion filed December 12, 2003.
An appeal from the Circuit Court for Escambia County.
Kenneth B. Bell, Judge.
Nancy A. Daniels, Public Defender; and P. Douglas Brinkmeyer, Assistant Public
Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; and Barbara J. Yates, Assistant Attorney General,
Tallahassee, for Appellee.
BROWNING, J.
Upon the State's concession of error, we vacate the excessive sentence on

Count II and remand for the trial court to impose a sentence within the time limits
allowed for a third-degree felony and to correct the sentence/probation orders
accordingly. § 775.082(3)(d), Fla. Stat. (2002). The State charged Appellant with
fleeing or attempting to elude a law-enforcement officer (Count I), a second-degree
felony pursuant to section 316.1935(3), Florida Statutes (2002); felony DUI (Count
II), a third-degree felony pursuant to section 316.193, Florida Statutes (2002); and
misdemeanor driving without a valid driver's license (Count III), a violation of section
322.03(1), Florida Statutes (2002). Appellant entered a "straight up" plea of nolo
contendere to the three counts and stipulated to having five prior DUI convictions.
The trial court orally adjudicated Appellant guilty of the three counts and sentenced
him to concurrent terms of 15 years' incarceration on Counts I and II, to be
suspended on a day-to-day basis, with Appellant to spend 5 years in prison and 5
years on probation. However, the written judgment/sentence reflects concurrent
terms of 20 years' incarceration on the felony counts, with Appellant to serve 5 years
in prison and 5 years on probation.
Appellant filed a motion to correct sentencing error pursuant to Florida Rule
of Criminal Procedure 3.800(b)(2) contending that the written sentence should be
made to conform to the orally pronounced sentence; and that the maximum penalties
for Counts I and II are 15 years and 5 years, respectively. § 775.082(3)(c)&(d), Fla.
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Stat. A successor judge corrected the sentence in Count I to 15 years but did not
correct the Count II sentence or the corresponding probation form.
Accordingly, we VACATE the sentence in Count II and REMAND for the trial
court to impose an appropriate sentence, to correct the probation order in Count II,
and to provide for prior prison credit.
POLSTON and HAWKES, JJ., CONCUR.
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