CHARLES HENRY ELLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Henry Ellis, classified as a youthful offender for attempted sexual battery, challenges his six-year sentence imposed after revocation of probation. The court holds that the Youthful Offender Act's mandatory sentencing provisions apply to sentences imposed upon probation revocation, and the trial court erred by imposing a six-year term when the statute limited incarceration to four years maximum.
The Youthful Offender Act's mandatory sentencing provisions apply to sentences imposed upon probation revocation. Under § 958.05, a youthful offender can receive a maximum of four years incarceration with up to two years community control, but these periods may not be added together to exceed a total six-year term. The trial court erred in imposing a six-year sentence.
[1] A defendant classified as a youthful offender must be sentenced in accordance with the Youthful Offender Act, even upon revocation of probation.
[2] The Youthful Offender Act imposes a maximum of four years incarceration for youthful offenders, and community control cannot be added to the maximum incarceration period…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Once a defendant is classified as a youthful offender, he must be sentenced in accordance with the act.”
Establishes that youthful offender statutory sentencing requirements are mandatory and apply to probation revocation sentences.
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Join FLexlaw to unlock all legal intelligenceEllis was classified as a youthful offender in 1979 for attempted sexual battery and sentenced to six years with one year actually served before a fiv…
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THOMPSON, Judge.
Defendant appeals his judgment and sentence for attempted sexual battery. Defendant argues that his six-year term of incarceration, imposed after he violated the terms and conditions of his Community Control Release Agreement as defined in the Youthful Offender Act, Chapter 958, Florida Statutes (1979), is contrary to the mandatory sentencing provisions of the Youthful Offender Act. We agree and reverse.
Defendant was classified as a youthful offender with regards to a 1979 attempted sexual battery. After being adjudicated guilty of this crime, he was sentenced to six years at the Alachua County Adult Corrections Center, with the provision that after serving one year, the remainder of his sentence would be stayed and withheld and he would be placed on five years probation. While defendant was on probation after release from the correctional center, an affidavit of violation of probation was filed, alleging he had violated the terms of his probation by, inter alia, committing burglary and two counts of grand theft. Defendant entered a negotiated plea, admitting he had violated the terms and conditions of his probation, in exchange for the state’s agreement to nolle pross the burglary and grand theft charges.
The trial court subsequently revoked defendant’s probation and imposed a six-year sentence with 436 days credit. Defense counsel correctly argued below that pursuant to the mandatory sentencing provisions of § 958.05, Fla.Stat. defendant could only be sentenced to a maximum of four years incarceration, with appropriate jail credit, and to a maximum of two years of community control but the maximum two years of community control could not be added to the maximum four years of incarceration to yield a six-year term of incarceration.
However, the trial court construed § 958.05 as not imposing a four-year maximum period of incarceration.
The trial court’s interpretation of the sentencing provisions of § 958.05 is erroneous. Once a defendant is classified as a youthful offender, he must be sentenced in accordance with the act. See Waugh v. State, 406 So. 2d 1238 (Fla. 2d DCA 1981). This also applies to sentences, such as the one herein, entered pursuant to a subsequent revocation of probation. See Brandle v. State, 406 So. 2d 1221 (Fla. 4th DCA 1982); Greene v. State, 398 So. 2d 1011 (Fla. 1st DCA), pet. for rev. dismissed, 406 So. 2d 1118 (Fla.1981). Since defendant was originally classified as a youthful offender regarding the attempted sexual battery, his sentence for attempted sexual battery which was imposed upon revocation of probation for that offense should have been in accordance with the provisions of § 958.05.
The state cites Preston v. State, 411 So. 2d 297 (Fla. 3d DCA), pet. for rev. den., 418 So. 2d 1280 (Fla.1982) for the proposition that defendant has waived the right to challenge the instant sentence because he did not challenge his original sentence for attempted sexual battery, which was clearly an improper sentence under § 958.05.
However, Preston, which involved an appeal from an order denying a motion to correct a sentence imposed after revocation of probation, is clearly distinguishable from the instant case. The defendant’s argument in Preston that he could only be sentenced upon revocation of probation, as a youthful offender because he was originally entitled to designation as a youthful offender was rejected because he had never sought designation as a youthful offender and because he had not been sentenced to imprisonment but had been placed on probation. The defendant in the case sub judice sought and was granted designation as a youthful offender. This defendant was actually sentenced to a term of imprisonment, which he apparently served before being released on probation.
Accordingly, Preston does not require rejection of the defendant’s argument.
The sentence imposed herein is reversed and the cause is remanded for resentencing consistent with the provisions of § 958.05. Defendant shall be given appropriate credit for the time he has already served.
ERVIN, C.J., and WIGGINTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984)…youthful offender act. Because the weight of authority is directly contrary to the State’s position, we hereby adhere to that authority and hold that the court may impose no more than four years’ imprisonment on each appellant. See Ellis v. State, 436 So. 2d 342 (Fla. 1st DCA 1983), and cases cited therein. For the reasons set forth above we affirm the orders revoking probation, which is tantamount to revocation of community control, but reverse the sentences imposed and remand the causes for resentencing…
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State v. Arnette, 604 So. 2d 482 (Fla. 1992)…la. 1st DCA 1985); Lane v. State, 470 So. 2d 30 (Fla. 5th DCA 1985); Hart v. State, 463 So. 2d 491 (Fla. 2d DCA 1985); Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984); James Crosby (II) v. State, 462 So. 2d 607 (Fla. 2d DCA 1985); Ellis v. State, 436 So. 2d 342 (Fla. 1st DCA 1983), rev. denied, 443 So. 2d 980 (Fla.1984); Brandle v. State, 406 So. 2d 1221 (Fla. 4th DCA 1981); Greene v. State, 398 So. 2d 1011 (Fla. 1st DCA 1981), appeal dis’m., 406 So. 2d 1118 (Fla.1981). Arnette v. State, 566 So. 2d 1369,…
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Spurlock v. State, 449 So. 2d 973 (Fla. 5th DCA 1984)…A 1981). In addition, the defendant may want to challenge, by a 3.850 motion, the five-year sentence of imprisonment, entered subsequent to revocation, as being in contravention of section 958.05(2), Florida Statutes (1981). See also Ellis v. State, 436 So. 2d 342 (Fla. 1st DCA 1983), review denied, 443 So. 2d 980 (Fla.1984). Accordingly, the order of revocation is affirmed. AFFIRMED. ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ruiz v. State, 411 So. 2d 297 (Fla. 3d DCA 1982)
- Preston v. State, 411 So. 2d 297 (Fla. 3d DCA 1982)
- Greene v. State, 398 So. 2d 1011 (Fla. 1st DCA 1981)
- Brandle v. State, 406 So. 2d 1221 (Fla. 4th DCA 1981)
- Young v. John F. Kennedy Mem'l Hosp., 406 So. 2d 1221 (Fla. 4th DCA 1981)
- Lenz v. State, 406 So. 2d 1118 (Fla. 1981)
- State v. Greene, 406 So. 2d 1118 (Fla. 1981)
- Mason T. Pruner v. ST. Paul Guardian Ins. Co., 406 So. 2d 1238 (Fla. 2d DCA 1981)
- Thomas v. Waugh, 406 So. 2d 1238 (Fla. 2d DCA 1981)