IN THE DISTRICT COURT OF APP EAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ORANGE COUNTY, FLORIDA, Petitioner,

v. Case No. 5D15-3140

STATE OF FLORIDA AND KEVIN ROBERT MCQUEENY-GONZALEZ, ETC., Respondents. ________________________________/ Opinion filed March 4, 2016

Petition for Certiorari Review of Decision from the Circuit Court for Orange County, Alan S. Apte, Judge. Scott Shevenell, Assistant County A ttorney, Orlando, for Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, A ssistant Attorney General, Daytona Beach, for Respondent, State of Florida. Robert Wesley, Public Defender, and Matthew Eric Baker, Assistant Public Defender, Orlando, for Respondent, Kevin Robert McQueeny-Gonzalez.

PALMER J.2 Orange County, Florida (Orange County) filed the instant petit ion requesting a writ of certiorari, seeking the quashal of a sentencing order. Becau se the sentencing court erred in entering a county jail sentence that exceeded one year , we grant the petition, quash the sentencing order, and remand for re-sentencing. Kevin Robert McQueeny-Gonzalez w as convicted of committing bur glary of a dwelling with an assault or a battery, a first-degree felony. § 810.02(2)(a), Fla. Stat. (2011). The trial court sentenced him to 750 days in the Orange County Jail, with credit for 386 days of time-served followed by two years of community control. Orange County filed a motion challenging this sentence, asserting that the de fendant should be serving his sentence in the Department of Corrections, not in the Count y Jail, because his sentence exceeds one year. See § § 922.051; 775.08(1), Fla. Stat . (2014). The trial court denied the motion, and the County then filed the instant petiti on. 1 To be entitled to receive certiorari relief, the County “must d emonstrate that the contested order constitutes '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[ ,] (3) that cannot be corrected on postjudgment appeal.'" Bd. of Trs. of Internal Improvement T rust Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012) (quoting Reeves v. Flee twood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). Section 775.08(1) of the Florida Statues defines a felony as b eing “any criminal offense that is punishable under the laws of this state, or tha t would be punishable if

1 A certiorari petition is the proper appellate remedy, as the C ounty was not a party to the judgment and sentence, but was adversely affected by it. See Dade Cnty v. Baker, 258 So. 2d 511, 512-14 (Fla. 3d DCA 1972) (Carroll, J., dissent ing), adopted by Dade Cnty v. Baker, 265 So. 2d 700, 701 (Fla. 1972); Dep’t of Corr. v. Harrison , 896 So. 2d 868 (Fla. 5th DCA 2005)); Dep’t of Corr. v. Grubbs, 884 So. 2d 114 (Fla. 2d DCA 2004).3 committed in this state, by death or imprisonment in a state pe nitentiary. . . . A person shall be imprisoned in the state penitentiary for each sentence which . . . exceeds 1 year.” (internal quotation marks omitted). Section 922.051 provides: Imprisonment in county jail, term of 1 year or less When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of a prisoner’s cumulative sentences is not more than one year.

It is not the effective amount of time that a defendant will ac tually spend incarcerated after receiving credit for time-served that controls the legality of a sentence, but instead, the actual length of the sentence propounded by the trial court. D ade County v. Baker, 258 So. 2d 511,512-14 (Fla. 3d DCA 1972) (Carroll, J., dissenting), adopted by Dade County v. Baker, 265 So. 2d 700, 701 (Fla. 1972). As such, the defenda nt’s sentence is illegal because no judge is authorized to sentence a defendant on a fel ony conviction to 750 days in the County Jail. Accordingly, the trial court’ s sentencing order is quashed and this matter is remanded to the trial court for the imposition of a legal sente nce. Since the defendant

was sentenced as a result of a negotiated plea, under Dade Coun ty, the defendant must be given the opportunity to withdraw his plea, if he so desires

. Petition GRANTED; Order Q UASHED; Cause REMANDED.

EVANDER and WALLIS, JJ., concur.