ARTHUR EASTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida Third District Court of Appeal reversed a trial court's sentencing condition that placed a defendant on probation contingent upon early release through gain time credits. The court held that such a probation condition is unauthorized by statute and improperly interferes with the Department of Corrections' exclusive authority over gain time.
The probation condition is erroneous and must be stricken because: (1) Florida Statutes section 948.01(8) authorizes probation only upon completion of a specified period of sentence, not upon early release via gain time; and (2) such a condition improperly negates the Department of Corrections' exclusive authority to allot gain time and undermines gain time as a reward for good behavior.
[1] A court order for probation to commence upon release by virtue of gain time, before the completion of the specified prison term, is unauthorized by statute.
[2] A court order for probation that negates the Department of Corrections' exclusive authority to allot gain time is improper.
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Join FLexlaw to unlock all legal intelligence“the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation .. .wpon completion of any specified period of such sentence”
Establishes that probation under section 948.01(8) is authorized only upon completion of a specified sentence period, not upon early release via gain time.
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Join FLexlaw to unlock all legal intelligenceThe trial court sentenced the defendant to twenty-two years imprisonment (the maximum under sentencing guidelines) with an additional condition that i…
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SCHWARTZ, Chief Judge.
The trial court imposed a twenty-two year sentence, the maximum under the guidelines, and also provided that, if the defendant were to be released by virtue of gain time at any time before he served the entire term, he was to be placed on probation for whatever the length of the remaining period. We conclude that, for two reasons, the order of probation is wholly erroneous and must be stricken.
First, the term is unauthorized by the applicable statute, section 948.01(8), Florida Statutes (1983),1 which provides only that the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation .. .wpon completion of any specified period of such sentence, [emphasis supplied]
Subsection (8) goes on to say that when such a proper term of probation is imposed, that “period ... shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain- time allowances.”2 This portion of the statute obviously runs counter to the assumption of the order before us that one may be on probation when he is released before his specified prison sentence has run.
Second, the order would improperly negate (a) the exclusive authority of the Department of Corrections to allot gain time, see Prince v. State, 421 So. 2d 791 (Fla. 1st DCA 1982); (b) the very purpose of permitting gain time as a “reward” for good behavior, see section 944.275, Florida Statutes (1983); and (c) the specific statutory provision that, when the Department releases a prisoner on account of earned gain time, he is no longer even on parole for the remainder of the original sentence. Section 944.291, Florida Statutes (1983). See also Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985), and cases cited (sentence condition precluding gain time improper).
Since the defendant’s remaining points present no error, see Spinkellink v. State, 313 So. 2d 666 (Fla.1975); Damon v. State, 397 So. 2d 1224, 1225 n.3 (Fla. 3d DCA 1981); Tucker v. State, 388 So. 2d 6 (Fla. 3d DCA 1980), pet. for review denied, 392 So. 2d 1380 (Fla.1981), the judgments under review are otherwise affirmed.
Affirmed as modified.
. In its entirety, the subsection states as follows: 948.01 When court may place defendant on probation or into community control.—
(8) 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 or, with respect to any such felony, into community control 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 or into community control after serving such period as may be imposed by the court. The period of probation shall commence immediately upon the release of the defendant from incarceration, whether by parol or gain-time allowances.
. We note that the addition of this sentence in 1983 expressly confirms the holding of State v. Tavel, 407 So. 2d 953 (Fla. 3d DCA 1981), pet. for review denied, 417 So. 2d 331 (Fla.1982); but cf., Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981); Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982), pet. for review denied, 427 So. 2d 737 (Fla.1983).
Cases With Similar Vibessemantic neighbors from the corpus
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Heuring v. State, 559 So. 2d 207 (Fla. 1990)…rom incarceration. The trial court’s sentencing order in this case is a blatant attempt to circumvent the statutory sentencing and gain-time provisions and as such cannot be countenanced. Chief Judge Schwartz was right on target in Easton v. State, 472 So. 2d 1369 (Fla. 3d DCA 1985). I agree with his analysis and reasoning. * This conclusion may also be constitutionally required. See North Carolina v. Pearce, 395 U.S. 711, 718-19 n. 13, 89 S.Ct. 2072, 2077 n. 13, 23 L.Ed.2d 656 (1969).…1 / 3
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Pittman v. State, 492 So. 2d 741 (Fla. 1st DCA 1986)…bjective determinations of the trial judge, yet that is the very thing the guidelines are supposed to eliminate from the sentencing process. E.g., Williams v. State, 492 So. 2d 1308 (Fla.1986). I join the majority in not following Easton v. State, 472 So. 2d 1369 (Fla. 3d DCA 1985).…1 / 2
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Heuring v. State, 539 So. 2d 590 (Fla. 1st DCA 1989)…cerns the propriety of the sentence of 25 years in prison, with the condition that should appellant be released early, he shall serve the remainder of the 25-year sentence on probation. A similar sentence was found to be improper in Easton v. State, 472 So. 2d 1369 (Fla. 3d DCA 1985).4 However, this court expressly rejected Easton in Pittman v. State, 492 So. 2d 741 (Fla. 1st DCA 1986),5 and Fisher v. State, 493 So. 2d 554 [*592] (Fla. 1st DCA 1986).6 Based upon this court’s decisions in Pittman and Fisher, we…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simkins Indus., Inc. v. Moreira, 313 So. 2d 666 (Fla. 1975)
- Spinkellink v. State, 313 So. 2d 666 (Fla. 1975)
- Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 1981)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985)
- Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982)
- Tucker v. State, 388 So. 2d 6 (Fla. 3d DCA 1980)
- State v. Tavel, 407 So. 2d 953 (Fla. 3d DCA 1981)
- Pitts v. State, 421 So. 2d 791 (Fla. 1st DCA 1982)
- Prince v. State, 421 So. 2d 791 (Fla. 1st DCA 1982)