JOHN GRANT WINKLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Grant Winkle appeals a split sentence probation order requiring him to serve the maximum 60-day jail term as a condition of probation for petit theft. The Florida District Court of Appeal reverses, holding that the combined periods of incarceration and probation in a split sentence probation order must not exceed the statutory maximum term of imprisonment for the offense.
The combined periods of incarceration and probation imposed as a split sentence probation alternative must be within the maximum term of imprisonment provided by statute for the crime. Therefore, the trial court lacked authority to impose the maximum jail term as a condition of probation for petit theft.
[1] The combined periods of incarceration and probation imposed as a split sentence probation alternative must not exceed the maximum term of imprisonment provided by statute…
[2] Incarceration as a condition of probation should serve as an incident of probation to give the defendant a "taste of prison," not as the "main course."
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Join FLexlaw to unlock all legal intelligence“the combined periods of incarceration and probation imposed as a 'true' split sentence alternative must be within the maximum period of incarceration provided by the statute for the offense involved”
Establishes the core holding extending Holmes to split sentence probation orders
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Join FLexlaw to unlock all legal intelligenceWinkle was adjudicated guilty of petit theft, a second-degree misdemeanor punishable by up to 60 days imprisonment or a $500 fine. The trial court wit…
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HOBSON, Judge.
John Grant Winkle appeals an order of the trial court adjudicating him guilty of petit theft,1 withholding imposition of sentence and placing him on six months probation on condition that he serve the maximum sixty-day jail term for the petit theft conviction. We reverse the split sentence probation alternative.2
Our supreme court held in State v. Holmes, 360 So. 2d 380 (Fla.1978), that the combined periods of incarceration and probation imposed as a “true” split sentence alternative3 must be within the maximum period of incarceration provided by the statute for the offense involved. We believe that the Holmes holding should also apply to a split sentence probation order because the decision is based upon a reading of section 948.01(4), Florida Statutes (1981).4 This statute not only authorizes the imposition of a “true” split sentence order when read alone, Holmes, but also authorizes the imposition of a split sentence probation order when read in conjunction with sections 948.01, 948.03(1) and (3). See Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107, 1109 (Fla.1981). In addition, the court stressed in Villery that incarceration as a condition of probation serves as an incident of probation to give the defendant “a taste of prison”; it must not serve as “the main course.” Id. at 1110-11. A maximum term of incarceration as a condition of probation can hardly be characterized as an incident of probation.
We therefore hold that the combined periods of incarceration and probation imposed as a split sentence probation alternative must be within the maximum term of imprisonment provided by the statute for the crime involved. Thus, the trial court in this case lacked the authority to impose as a condition of probation the maximum jail term for the petit theft conviction.
Accordingly, we reverse the split sentence probation order and remand with directions that the trial court either impose sentence or place appellant on probation in a manner not inconsistent with this opinion.
REVERSED and REMANDED.
OTT, C.J., and RYDER, J., concur. . We presume that this is appellant’s first conviction for petit theft since the record-on-appeal and the parties’ briefs do not indicate otherwise. A first conviction for petit theft is a misdemeanor of the second degree punishable by either a definite term of imprisonment not exceeding 60 days or a fine not exceeding $500. See §§ 812.014(2)(c), 775.082(4)(b), 775.-083(l)(e), Fla.Stat. (1981).
. A split sentence probation alternative is not a sentence. See Villery v. Fla. Parole & Probation Comm’n, 396 So. 2d 1107, 1109-10 (Fla.1981).
. A “true” split sentence alternative is a sentence imposing a specified period of incarceration to be followed by a specified period of probation.
. Section 948.01(4) provides in full:
948.01 When Courts May Place Defendant on Probation.—
(4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 484 So. 2d 581 (Fla. 1986)…EHRLICH, Justice. The district court has certified that its decision in this case, Smith v. State, 448 So. 2d 20 (Fla. 1st DCA 1984), is in direct conflict with a decision of another district, Winkle v. State, 422 So. 2d 984 (Fla. 2d DCA 1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Smith was convicted of a second-degree misdemeanor, trespass in a structure. The trial judge withheld sentence and placed Smith on six months probation. Smith was to serve six…
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Smith v. State, 448 So. 2d 20 (Fla. 1st DCA 1984)…carceration period for rehabilitation purposes. Cf, Winkle, infra. We certify, pursuant to Art. V, § 3(b)(4), Florida Constitution (1983), that this decision is in direct conflict with that of the Second District Court of Appeal in Winkle v. State, 422 So. 2d 984 (Fla. 2d DCA 1982). That case involved a factual situation identical to the one herein. Appellant had received a six-month period of probation, and, as a condition thereof, was required to serve 60 days in jail, the maximum sentence allowable for hi…
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Grant v. State, 600 So. 2d 19 (Fla. 2d DCA 1992)…alternative. See Poore v. State, 531 So. 2d 161, 164 (Fla.1988). The trial court followed the mandate of this court at resentencing by imposing what is clearly a guidelines sentence. The case on which defendant principally relies, Winkle v. State, 422 So. 2d 984 (Fla. 2d DCA 1982), is distinguishable. In Winkle, the combined incarceration and probation exceeded the statutory maximum. The crux of defendant’s argument is the position that the 10 years probation is superfluous because it is unenforceable under…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)