BETSY WESLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
BETSY WESLEY, APPELLANT,
STATE OF FLORIDA, APPELLEE
400 So. 2d 175
Florida District Court of Appeal, Fifth District (1981)
Negative Treatment
Cited by 9 cases
Opinion of the Court
PER CURIAM.
Appellant’s split sentence of eighteen months imprisonment followed by three and one-half years probation is vacated and the case is remanded to the trial court for re-sentencing in accordance with the principles set forth in Villery v. The Florida Parole and Probation Commission, 896 So. 2d 1107 (Fla.1981).
DAUKSCH, C. J., and ORFINGER, J., concur. COWART, J., dissents with opinion.
Dissent
COWART, Judge,
dissenting:
I dissent for the reasons expressed in the dissent to Lauxman v. State, 402 So. 2d 432 (Fla. 5th DCA 1981). In addition to the problems in the application of Villery noted in that opinion, I would point out a fallacy in its application to split sentences. Villery provides that, upon correcting the sentence, the court may not “impose a sentence of imprisonment for a period of time in excess of the original total term of probation.” If this language is literally applied, in modifying Wesley’s split sentence of eighteen months imprisonment followed by three and one-half years of probation, the maximum term of imprisonment which the trial judge may impose upon resentencing is three and one-half years.
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Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983)…in resentencing him in his absence. Florida Rule of Criminal Procedure 3.180(a)(9) provides that the defendant shall be present at the “imposition of sentence.” The state apparently acknowledges, pursuant to this court’s decision in McRae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981), that resentencing under Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. 2d DCA 1981), requires the presence of the defendant.2 The state, however, contends that because defense counsel was present and o…
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Cervantes v. State, 415 So. 2d 105 (Fla. 3d DCA 1982)…396 So. 2d 1107 (Fla.1980), and can, therefore, be entered, as here, upon multiple convictions. We recognize that our holding here is in conflict with decisions rendered by two of our distinguished sister district courts of appeal, McCrae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981); Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981); German v. State, 382 So. 2d 146 (Fla. 4th DCA 1980); Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979) and regret that we cannot follow these decisions because, in our view,…
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Scott v. State, 439 So. 2d 222 (Fla. 4th DCA 1983)…which language supports the State’s position to the effect that it was not necessary for Scott to be present. Regardless, Thacker v. State, 185 So. 2d 202 (Fla. 3d DCA 1966); Walker v. State, 284 So. 2d 415 (Fla. 2d DCA 1972); and McCrae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981), have held that it is fundamentally necessary for a defendant to be present when being resen-tenced. Even though these opinions do not mention the contrary language contained in Rule 3.850, supra, and its predecessor, we believe…
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- Lauxman v. State, 402 So. 2d 432 (Fla. 5th DCA 1981)