McKinley v. State 519 So. 2d 1154

SHARP, W., Chief Judge.

McKinley appeals an order resen-tencing him for two unrelated offenses (attempted second degree murder and forgery), together with costs. He previously appealed the attempted second degree murder sentence, and jurisdiction was relinquished to the lower court for resentenc-ing.1 However, the trial judge resentenced McKinley not only on the attempted second degree murder conviction, but also on the forgery conviction which was unaffected by the appeal. The latter resentencing was improper and we vacate it and reinstate the original sentence which shall run concurrent to the attempted second degree murder sentence. Kelly v. State, 508 So.2d 788 (Fla. 5th DCA 1987).

McKinley had originally been sentenced to 12 years imprisonment on the attempted second degree murder offense. The amended scoresheet reveals a total of 123 points, which equates to a recommended guideline sentence of 3 to 7 years incarceration. On resentencing, McKinley received a split sentence; 7 years incarceration followed by 8 years probation. The maximum legal sentence for attempted second degree murder is 15 years.2 If the incarcerative portion of a split sentence does not exceed the guidelines, and the total sentence does not exceed the legal maximum sentence, the sentence is not a departure sentence. Cain v. State, 506 So.2d 1125 (Fla. 1st DCA 1987); McDowell v. State, 491 So.2d 594 (Fla. 5th DCA 1986), approved in part, quashed in part, 509 So.2d 927 (Fla.1987). We therefore affirm the sentence for attempted second degree murder.

*1155Finally, costs were erroneously imposed under section 27.3455(1), Florida Statutes (1985) as the offenses were committed prior to the effective date of that statute. They are therefore stricken. State v. Yost, 507 So.2d 1099 (Fla.1987); Thompson v. State, 512 So.2d 298 (Fla. 5th DCA 1987).

REINSTATE FORMER SENTENCE FOR FORGERY; AFFIRM ATTEMPTED SECOND DEGREE MURDER SENTENCE; STRIKE COSTS.

ORFINGER, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially.

I concur with the majority opinion. However, a sentence of “7 years incarceration followed by 8 years probation” is not a split sentence and is subject to the infirmity explained in Poore v. State, 503 So.2d 1282 (Fla. 5th DCA 1987), rev. granted, No. 70,397 (Fla. July 22, 1987).1 However that problem does not render the sentence per se unlawful because, while the problem is latent2 and inherent, it is only potential and matures after the defendant serves the entire “unsplit” sentence of confinement (here seven years), violates the probation imposed, and the trial court, in an attempt to punish him for the probation violation, violates the defendant’s double jeopardy rights by attempting to “resentence” him a second time to a longer period of confinement for the original offense. If the supreme court agrees with Poore, the result will be to render ineffectual and superfluous a provision for probation which is merely appended to a valid “unsplit” sentence of confinement rather than properly splitting the execution of the one valid sentence of confinement and reserving or deferring some portion of it to be imposed in the event the probation is violated.