RICHARD A. CIGELSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Cigelski appealed a denial of post-conviction relief, challenging his sentence as exceeding the maximum authorized by law. The court agreed that incarceration in excess of 364 days as a condition of probation violated Florida law and reversed, ordering his immediate release with credit for time served.
The sentence was illegal because incarceration in county jail in excess of 364 days as a condition of probation is impermissible under Florida law. The court reversed the denial of post-conviction relief and ordered appellant's immediate release on probation with credit for time served.
[1] A sentence imposing incarceration in a county jail exceeding 364 days as a condition of probation or consecutive terms of probation is illegal.
[2] Incarceration for felonies may not cumulatively exceed one year if county facilities are used.
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Join FLexlaw to unlock all legal intelligence“Incarceration in the county jail in excess of 364 days as a condition of probation or as a condition of consecutive terms of probation is illegal.”
Establishes the core legal principle that county jail incarceration exceeding 364 days as a probation condition violates Florida law.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to burglary and grand theft. He received ten years of probation for burglary conditioned on one year in county jail, and a se…
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THOMPSON, Judge.
This is an appeal from an order denying appellant’s motion for post-conviction relief. Appellant contends that his sentence was in excess of the maximum authorized by law. We agree and reverse.
This is the second appeal relating to appellant’s sentence. The sentence was initially appealed to this court as an improper deviation from the sentencing guidelines, and was affirmed. Cigelski v. State, 453 So. 2d 840 (Fla. 1st DCA 1984) (Cigelski I). In Cigelski I, the question of whether the sentence exceeded the maximum authoriz ed by law was not raised in the lower court or in the briefs on appeal, and rehearing sought on this ground was denied for that reason. Our Supreme Court denied review of this court’s decision. Cigelski v. State, 459 So. 2d 1039 (Fla.1984).
Appellant then filed a motion for post-conviction relief, asserting that his sentence exceeded the maximum authorized by law. The motion was denied and this appeal followed. As distinguished from Cigelski I, the question of whether the sentence exceeded the maximum authorized by law was raised in the lower court by appellant’s Fla.R.Crim.P. 3.850 motion and can now be properly considered by this court on appeal.
The appellant pleaded guilty to charges of burglary and grand theft. He was placed on probation for a term of ten years for the burglary conviction and was given a separate consecutive five-year term of probation for the grand theft conviction. Each term of probation was conditioned upon appellant serving one year in the county jail, the periods of incarceration to be served consecutively.
Incarceration in the county jail in excess of 364 days as a condition of probation or as a condition of consecutive terms of probation is illegal. Incarceration for felonies may not cumulatively exceed one year if the county facilities are used. Broxton v. State, 453 So. 2d 98 (Fla. 1st DCA 1984).
We would normally vacate the illegal probation order and remand for re-sentencing. However, in this ease Cigelski has already served approximately 20 months of the 24 months incarceration ordered and could possibly serve the entire 24 months before the relief sought is granted. If remanded and the trial court again orders probation the maximum legal period of incarceration in the county jail that could be ordered is 364 days. The crimes for which Cigelski was convicted and placed on probation occurred prior to the effective date of § 921.187, Fla.Stat. (1983) and any split sentence imposed upon re-mand would be controlled by Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981) which limits the incarceration portion to 364 days for each sentence.
For these reasons, the order denying post-conviction relief is reversed. It is ordered that the appellant be released immediately and placed on probation for the two consecutive terms of probation previously ordered, less credit for the period of time he has been incarcerated.
REVERSED.
ZEHMER, J., concurs.
JOANOS, J., concurs in part and dissents in part.
JOANOS, Judge,
concurring in part and dissenting in part.
I concur in the majority’s determination that the order requiring incarceration in the county jail for a period in excess of 364 days under the circumstances of this case should be reversed. However, I disagree that this court should now order the appellant immediately released and placed upon probation for the two consecutive terms of probation previously ordered. The proper course for us to take is to remand the matter to the trial court for a new disposition. The procedure followed by the majority implies that the trial judge could only order probation or a split sentence. I disagree. There are other options available to the trial judge. He should be free to now dispose of the case as if no previous disposition had been entered subject, of course, to the limitations of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981). Beech v. State, 436 So. 2d 82 (Fla.1983); Williams v. State, 464 So. 2d 1218 (Fla. 1st DCA 1985); see generally, 15 Fla.Jur.2d 581, Criminal Law § 901.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)…term being a condition of probation on felony conviction, violated section 922.051 which prohibits imposition of county jail term for felony conviction such that total of prisoner’s cumulative county jail terms exceeds one year); Cigelski v. State, 470 So. 2d 46, 47 (Fla. 1st DCA 1985) (incarceration for felonies may not cumulatively exceed one year if county facilities are used); Fla.Stat. § 922-051 (1991). The state does not dispute appellant’s contention that the special condition of probation was illeg…
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Kline v. State, 509 So. 2d 1178 (Fla. 1st DCA 1987)…The felony sentence is, therefore, necessarily cumulative to the misdemeanor sentence and extends appellant’s total jail sentence beyond one year, in violation of section 922.051, Florida Statutes (1985), for the reasons stated in Cigelski v. State, 470 So. 2d 46 (Fla. 1st DCA 1985). The fact that the initial sentence of imprisonment in county jail was imposed for a misdemeanor, while both sentences in [*1181] Cigelski were for felony convictions, is an immaterial difference between that case and this one. S…1 / 2
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Gwynn v. Orange Cnty. Bd. OF Cnty. Comm'rs, 527 So. 2d 866 (Fla. 5th DCA 1988)…When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of the prisoner’s cumulative sentences is not more than 1 year. He relies on Cigelski v. State, 470 So. 2d 46 (Fla. 1st DCA 1985) and Kline v. State, 509 So. 2d 1178 (Fla. 1st DCA 1987) to argue that because his cumulative sentences on the misdemeanors totalled more than one year, he was entitled to serve eleven of the twelve years in a state prison. We re…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Beech v. State, 436 So. 2d 82 (Fla. 1983)
- State v. Schaffer, 464 So. 2d 1218 (Fla. 4th DCA 1984)
- Williams v. State, 464 So. 2d 1218 (Fla. 1st DCA 1984)
- Cigelski v. State, 453 So. 2d 840 (Fla. 1st DCA 1984)
- Broxton v. State, 453 So. 2d 98 (Fla. 1st DCA 1984)