H. STOCKTON MASSEY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenges the legality of a 90-day jail sentence imposed to be served on weekend increments. The court holds that such intermittent sentences are illegal absent the defendant's consent, and remands for resentencing with credit for time served.
Except where the defendant consents, a court cannot impose an interrupted sentence. The 90-day weekend sentence is illegal, and the case is remanded for resentencing with full credit for all time served, including three days' credit for each weekend served.
[1] A court cannot impose an interrupted jail sentence unless the defendant consents.
[2] A defendant may attack an illegal sentence through a motion for post-conviction relief.
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Join FLexlaw to unlock all legal intelligence“There is nothing in our statutes which purports to authorize an interrupted sentence.”
Establishes the core holding that Florida law does not permit intermittent sentences
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Join FLexlaw to unlock all legal intelligenceAppellant was initially placed on 11 months' probation for traffic-related misdemeanors and resisting arrest without violence. The trial court later r…
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GRIMES, Judge.
This appeal involves the legality of a ninety day sentence which the trial court ordered appellant to serve in weekend increments.
The court originally placed appellant on eleven months’ probation as a result of several traffic-related misdemeanors and resisting arrest without violence. It later revoked probation on the resisting arrest without violence charge and sentenced him to ninety days in jail “to be served on weekends from Fridays at 6:00 p. m. through Sundays at 6:00 p. m. to begin May 11, 1980.” This court affirmed the revocation.
When appellant failed to report on the seventeenth weekend, the trial court adjudicated him guilty of indirect contempt and sentenced him to thirty days in jail. It also ordered the suspension of the ninety day sentence during the thirty day incarceration. Appellant filed a motion for postcon-viction relief attacking the legality of the ninety day sentence and the subsequent order of contempt. This is an appeal from the denial of that motion.
A defendant may attack an illegal sentence by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Skinner v. State, 366 So. 2d 486 (Fla.3d DCA 1979). Therefore, we must decide whether the court could legally impose an intermittent sentence.
There is nothing in our statutes which purports to authorize an interrupted sentence. While there are no Florida decisions directly on point, our courts have on several occasions observed that a prisoner is entitled to pay his debt to society in one stretch rather than in bits and pieces. Segal v. Wainwright, 304 So. 2d 446 (Fla.1974); Ex parte Bosso, 41 So. 2d 322 (Fla.1949); State v. Coleman, 149 Fla. 28, 5 So. 2d 60 (1941). The Supreme Court of Arizona has held that a defendant convicted of a misdemeanor for which the maximum penalty was one year in jail could not be given a sentence of ninety days to be served in interrupted periods. State v. Bigelow, 76 Ariz. 13, 258 P. 2d 409 (1953). The Supreme Court of Nebraska reached a similar conclusion in State v. Jurgens, 187 Neb. 557, 192 N.W. 2d 741 (1971). In light of these authorities, we hold that, except where the defendant consents, the court cannot impose an interrupted sentence.
We hasten to point out that our decision does not conflict with State v. Williams, 237 So. 2d 69 (Fla.2d DCA 1970), because there the court imposed the requirement of intermittent incarceration as a condition of probation. Also, because we conclude that the sentence was illegal, we do not consider appellant’s further argument that the court lost jurisdiction to hold him in contempt after it sentenced him and placed him in the hands of those charged with the responsibility of his custody. See Ex parte Turner, 73 Fla. 360, 74 So. 314 (1917).
Since appellant’s sentence was illegal, we remand the case with directions that the court resentence appellant, with credit for all jail time, including any time served under the contempt order. Since fractions of days are counted as full days at common law, appellant is entitled to three days’ credit for each of the weekends he has served. State v. Jurgens.
REVERSED and REMANDED.
HOBSON, Acting C. J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987)…s and in the interest of having sentences served in a continuous uninterrupted stretch, we determine that when a defendant is given a split sentence, the non-incarcerative portion must immediately follow the prison sanction. Compare Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980). Therefore, we reverse and remand to the trial judge for resentencing in count 2 of case number 85-4681 to reflect the above consideration. We find no error in those sentences imposing only probation to run consecutively to anothe…
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Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988)…“recalled” to serve four more years imprisonment before again being released to serve two years probation. Such an interrupted sentence is not allowed under Florida Statutes. See Lanier v. State, 604 So. 2d 501 (Fla. 1st DCA 1987); Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980). Next, the quoted provision in the trial court’s order imposing community service is invalid. As held in Causey v. State, 504 So. 2d 34 (Fla. 1st DCA 1987), the circuit court has no authority to order the summary revocation of ga…
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Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982)…he might be sentenced as a habitual offender was given to appellant as required by the statute. Thus, his sentence as a habitual offender is illegal and subject to correction by his motion for postconviction relief under Rule 3.850. Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980). Accordingly, we strike the reference to Grubbs’ being a habitual offender from his [*28] sentence; otherwise, we affirm the trial court’s denial of his petition. OTT and RYDER, JJ., concur.…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Ex Rel. Libtz v. Coleman, 5 So. 2d 60 (Fla. 1941)
- State v. Wardell Robert Williams, 237 So. 2d 69 (Fla. 2d DCA 1970)
- Segal v. Wainwright, 304 So. 2d 446 (Fla. 1974)
- Ex parte Turner, 73 Fla. 360 (Fla. 1917)
- Sonz v. Rose-Marie, 41 So.2d 322 (Fla. 1949)
- Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979)