IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

STATE OF FLORIDA

            Appellant,

Appeal No. CRC 03-41 APANO

UCN522003AP000041XXXXCR

ELIZABETH OZIAS

            Appellee.

_______________________/

Opinion filed __________________.

Appeal from a sentence entered

by the Pinellas County Court

County Judge William Overton

Chaila Day Restall, Esq.

Assistant State Attorney

ORDER AND OPINION

            THIS MATTER is before the Court on the State’s appeal from a sentence entered by the Pinellas County Court. After reviewing the State’s brief (the appellee failed to file an answer brief), this Court reverses the judgment and sentence.

            The State appeals the sentence imposed in this case, claiming that it is illegal because it did not impose the mandatory jail time. The defendant in the case at bar was convicted of DUI. The record also reflects that the defendant was previously convicted of DUI on two prior occasions --- September 17, 1992 and December 16, 1997. Florida statute §316.193(6)(c)(2003) requires that: “For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days.” Similar language was construed under an older version of this statute to mean that the third conviction must occur within ten years of the previous conviction. See Drigotas v. State, 531 So.2d 421 (Fla. 4^th DCA 1988). Since the defendant in the case at bar was convicted of DUI for a third time within ten years of her previous DUI conviction, the mandatory thirty-day jail sentence should have been imposed. Since the sentence imposed failed to contain any provision for jail time, it is a violation of §316.193(6)(c)(2003), and therefore an illegal sentence that must be vacated.

            This Court notes that the sentence in this case was imposed following the defendant’s plea. Since the sentence is being vacated because it is illegal, the defendant cannot receive the benefit of her agreement, and she should be given an opportunity to withdraw her plea.

            IT IS THEREFORE ORDERED that the judgment and sentence are reversed, and this case is remanded to the trial court for further proceedings consistent with this Order and Opinion.

            IT IS FURTHER ORDERED that upon remand the defendant may, if she wants to, withdraw her plea.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2004.

                                                                                    _______________________

                                                                                    James R. Case

                                                                                    Circuit Judge

                                                                                    _______________________
                                                                                    Nancy Moate Ley

                                                                                    Circuit Judge

                                                                                    _______________________

                                                                                    John A. Schaefer

                                                                                    Circuit Judge

cc: State Attorney

      Herbert Gould, Esq.

      Elizabeth Ozias

      Judge Overton