WILLIAM BRUDIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be sentenced to probation and incarceration simultaneously, as probation presupposes the individual is not in prison.
Defendant pleaded nolo contendere to ten charges in five informations, agreeing to sentencing within the presumptive guidelines range. In three cases,…
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OTT, Judge.
We vacate defendant’s sentences in two of five cases and remand for resentencing.
Pursuant to a plea agreement, defendant pled nolo contendere to ten charges set out in five two-count informations. In return, he was to be sentenced within the presumptive range under the sentencing guidelines. Fla.R.Crim.P. 3.701. Defendant’s guidelines scoresheet called for a prison term of 4V2 to 5V2 years. Defendant was sentenced to imprisonment in accordance with the presumptive range in three cases. In the remaining two, numbered 83-685 and 83-995, the court sentenced defendant to 5 years and 5V2 years probation, respectively, to run concurrent with the terms of imprisonment. It is these two sentences which we vacate.
In Roy v. State, 207 So. 2d 52 (Fla. 2d DCA 1967), this court held that one cannot be sentenced to probation and incarceration simultaneously, noting that the standard terms of probation found in section 948.03, Florida Statutes (1965)1 “would have no possible area of compliance so long as the intended ‘probationer’ remained in prison serving an existing sentence.” Furthermore, “[t]he underlying concept of probation is rehabilitation rather than punishment and presupposes the fact that [the] probationer is not in prison confinement.” Bernhardt v. State, 288 So. 2d 490, 495 (Fla.1974).
We affirm the convictions in case numbers 83-685 and 83-995 but vacate the sentences and remand with instructions to sentence defendant to a term of imprisonment within the presumptive guidelines range.2 Defendant’s other judgments and sentences are affirmed.
RYDER, C.J., and CAMPBELL, J., concur. . Amendments to section 948.03 subsequent to Roy do not affect the continued validity of the court’s rationale.
. Because of our decision, we need not discuss whether the probationary sentences violated the plea agreement and, if so, whether defendant's acquiescence amended the agreement.
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Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985)…t should have prepared a scoresheet. Rule 3.701(d)(1) of the Florida Rules of Criminal Procedure. The trial court erred in its sentencing procedure. Finally, the appellant received concurrent terms of imprisonment and probation. In Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985), we held it was reversible error to impose concurrent terms of imprisonment and probation. One cannot be simultaneously sentenced to probation and incarceration because of the impossibility of complying with probation while in pri…
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Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991)…firmed. WOLF, J., and WENTWORTH, Senior Judge, concur. . Section 921.187(1)(g), F.S. (1989); Glass v. State, 574 So. 2d 1099 (Fla.1991). . In this appeal, appellant does not challenge the validity of his Leon County sentences. . Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985); Roy v. State, 207 So. 2d 52 (Fla. 2d DCA 1967).…
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COX v. State, 468 So. 2d 437 (Fla. 2d DCA 1985)…of the fifteen-year term of probation. Defendant now contends the trial court erred by imposing concurrent terms of probation and imprisonment. We agree. A defendant cannot serve a prison term and be on probation simultaneously. Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985). See also Boy v. State, 207 So. 2d 52 (Fla. 2d DCA 1967). Therefore, we construe the trial court’s sentencing order as interrupting defendant’s term of probation for the period of incarceration imposed on the theft charge. Thus, u…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- ROY v. State, 207 So. 2d 52 (Fla. 2d DCA 1967)