TORY v. STATE

PER CURIAM.

Defendant appeals asserting his sentence was not in accord with his negotiated plea. The record clearly shows that the plea was to a maximum of three years in prison. The sentence stated orally in open court was two years in prison followed by two years' probation, but the written judgment and sentence imposed a sentence of three years in prison followed by two years' probation.

In view of this inconsistency, the sentence is vacated and the matter is remanded for resentencing. Appellant contends he could not be sentenced to probation and prison for any combined term over three years. We do not rule on this issue as it was never presented to the trial court.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

DOWNEY and BERANEK, JJ., and RUTTER, ROBERT WILLIAM, Jr., Associate Judge, concur.