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GIARRAPUTO v. STATE

No. 83-1540.

447 So.2d 1033 (1984)

Gary L. GIARRAPUTO, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fourth District.

April 4, 1984.

Attorney(s) appearing for the Case

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.

LETTS, Judge.

In this case, a trial judge sentenced the defendant to 364 days in "Florida State Prison;" on appeal, the state concedes that a sentence for less than one year cannot be served in any state penitentiary. See Section 775.08(1), Florida Statutes (1983).

However, the state argues that it is harmless error and points out as a practical matter that the judge has no authority to choose the place of incarceration. In fact,

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