EDDIE GOMEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Affirmed conviction but reversed split sentence as invalid under Villery; remanded for resentencing with option to decline correction.
A split sentence of imprisonment followed by probation is invalid, but on remand the trial court may impose a new sentence up to the statutory maximum or the defendant may decline resentencing.
[1] A split sentence consisting of a term of imprisonment followed by a term of probation is invalid under Florida law, but a defendant may elect to decline resentencing and…
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Join FLexlaw to unlock all legal intelligenceGomez was convicted and sentenced to four years imprisonment followed by four years probation.…
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PER CURIAM.
There is no showing in the record that the court abused its discretion in denying defendant’s oral motion for continuance of the trial. Magill v. State, 386 So. 2d 1188 (Fla.1980); Lyles v. State, 312 So. 2d 495 (Fla. 1st DCA 1975); Fla.R.Crim.P. 3.190(g).
Appellant’s split sentence of four years of imprisonment followed by four years of probation is invalid, Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1981), but upon remand for correcting the sentence, the court may, as one of its options, withdraw the sentence altogether and impose a new sentence not to exceed eight years imprisonment (with credit for time served). Flynn v. State, (Fla. 1st DCA 1981) (case no. AE-15, opinion filed October 30, 1981); Alexander v. State, 402 So. 2d 485 (Fla. 2d DCA 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). In light of this construction placed on Villery, supra, which could result in the imposition of a lengthier prison sentence, the appellant may wish to decline correction of his sentence.
The conviction under review is affirmed; the sentence under review is reversed and the cause is remanded to the trial court for resentencing unless the defendant withdraws his request for resentencing, in which event the sentence under review shall stand affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982)…So. 2d 1107 (Fla.1981). Because the trial court upon remand for correction of the sentence may withdraw the sentence and impose a new sentence, Singleton v. State (Fla. 5th DCA 1982) (Case no. 81-379, opinion filed February 3, 1982); Gomez v. State, 409 So. 2d 1096 (Fla. 3d DCA 1981); Flynn v. State, 413 So. 2d 36 (Fla. 1st DCA 1981); Alexander v. State, 402 So. 2d 485 (Fla. 2d DCA 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981), the appellant may wish to decline correction of her sentence. Accordingl…
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Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982)…ct to Pearce limitations. However, in Villery our supreme court authorized the trial court upon resentencing to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given. Gomez v. State, 409 So. 2d 1096 (Fla. 3d DCA 1982) [1982 FLW 314]; Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981); and Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). Neither of the sentences of the appellants in this case exceed the total term of incarceration and proba…
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Willis v. State, 413 So. 2d 1290 (Fla. 3d DCA 1982)…ng, to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given, unless a condition of probation had been violated. This rule has been restated in several Florida cases. Gomez v. State, 409 So. 2d 1096 (Fla. 3d DCA 1982). Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). We must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribe…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Magill v. State, 386 So. 2d 1188 (Fla. 1980)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Lyles v. State, 312 So. 2d 495 (Fla. 1st DCA 1975)
- Alexander v. State, 402 So. 2d 485 (Fla. 2d DCA 1981)