State v. Myers

OPINION OF THE COURT

The State appeals the sentencing in this cause. The Court dispenses with oral argument herein pursuant to Fla.R.App.P. 9.320.

On February 22, 1986, Appellee was stopped by a Florida Highway Patrol officer and arrested for driving while under the influence of alcohol. On November 4, 1986, a jury found Appellee guilty as charged.

*88Appellee had been convicted previously of driving while under the influence of alcohol in 1979 and 1982; the 1986 conviction was his third. Florida Statute 316.193(4)(c)1 provides: “[F] or the third conviction within a period of 5 years from the date of a prior conviction for violation of this section, the Court shall order imprisonment for not less than 30 days.” Notwithstanding this provision, the trial court sentenced Appellee to only 10 days imprisonment. The State appealed the sentence.

The only issue to be resolved is whether the third conviction must be within 5 years of both prior convictions. The clear wording of the Statute, and the decision of the Fourth District Court of Appeal in Drigotas v State, 531 SO.2d 421 (Fla. 4th DCA 1988) answers this question in the negative. Therefore, this Court finds the trial court erred in sentencing Appellee to less than 30 days imprisonment as is required by law.

The State’s appeal for resentencing is granted. This cause is remanded to the trial court for resentencing consistent with this opinion.

Motions for rehearing will not be entertained. The Clerk is directed to issue its mandate forthwith.

DONE AND ORDERED in chambers at the Orange County Courthouse, Orlando, Florida, this 13th day of September, 1990.