EUGENE WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eugene Wilson appealed his sentencing in a sexual battery case after violating community control conditions imposed as part of a split sentence. The court held that upon violation of community control in a true split sentence, a defendant cannot be resentenced for the original offense but must only be recommitted to serve the remainder of the original sentence.
A defendant cannot be sentenced a second time for the same offense upon violation of community control imposed as part of a true split sentence; the defendant can only be recommitted to confinement to serve the remainder of the original sentence.
[1] Upon violation of community control imposed as part of a true split sentence, a defendant may only be recommitted to confinement to serve the remainder of the original se…
[2] A sentence imposed after a violation of community control, which exceeds the original split sentence term, is invalid.
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Join FLexlaw to unlock all legal intelligence“upon violation of community control (or probation) imposed as part of a true split sentence, as in this case, the defendant cannot be sentenced a second time for the same offense, but can only be recommitted to confinement to serve the remainder of the original sentence.”
States the core legal principle: resentencing for the original offense is prohibited upon community control violation in a split sentence
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Join FLexlaw to unlock all legal intelligenceWilson pleaded guilty to sexual battery in 1984 and was adjudicated a youthful offender, receiving a split sentence of six years: four years incarcera…
The full statement of facts, procedural history, and disposition for this case are member content.
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COWART, Judge.
Following a guilty plea entered pursuant to a plea agreement in a sexual battery case (No. 83-1346), the defendant was adjudicated a youthful offender (section 958.04, Florida Statutes). On February 1, 1984, he was sentenced in accordance with section 958.04(2)(c), Florida Statutes, to a term of six years’ confinement with a provision that after four years he be placed on community control for two years. This split sentence specifically stated that:
if you violate any of the conditions of your Community Control, you may be arrested and the Court may revoke your Community Control and require you to serve the balance of said sentence, [emphasis supplied]
After serving his initial incarceration of four years, the defendant violated his community control conditions by again breaking the law by selling or possessing cocaine, for which he was charged in Case No. 86-1190. The defendant plead nolo contendere to possession of cocaine. As to the sexual battery offense, the trial court sentenced the defendant to thirteen years' incarceration with credit for the 834 days previously served. On the cocaine possession charge, the defendant was sentenced to five years’ probation, to be served consecutive to the sentence in Case No. 83-1346, which disposition constituted a downward departure from the recommended guideline sentence. The defendant appeals the sentence of thirteen years incarceration in the sexual battery case (Case No. 83-1346), but the State did not appeal the downward departure disposition in the cocaine case.1
As explained in Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987), upon violation of community control (or probation) imposed as part of a true split sentence, as in this case, the defendant cannot be sentenced a second time for the same offense, but can only be recommitted to confinement to serve the remainder of the original sentence.
Accordingly, as in Poore, the thirteen year sentence dated December 17, 1986 in Case No. 83-1346, is vacated and the cause is remanded for recommitment of the defendant to confinement under the first sentence in that case dated February 1, 1984. The conviction and sentence in Case No. 86-1190 are affirmed.
SENTENCE VACATED; CAUSE REMANDED.
ORFINGER J., concurs.
SHARP, J., dissents with opinion.
. See Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987).
SHARP, Judge,
dissenting.
I respectfully dissent for the reasons expressed in my special concurring opinion in Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987).
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Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)….S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . Review granted, Florida Supreme Court Case No. 70,397 (July 22, 1987). .Review granted, Florida Supreme Court Case No. 71,420 (February 17, 1988). . We also recede from anything in Wilson v. State, 515 So. 2d 254 (Fla. 5th DCA 1987) and Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987), which were decided in reliance on Poore, which may be in conflict with this opinion. . Although in Roberts, the majority interpreted the Federal Probation Act to prohibit a…
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McKINLEY v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988)…unsplit” sentence of confinement rather than properly splitting the execution of the one valid sentence of confinement and reserving or deferring some portion of it to be imposed in the event the probation is violated. . See also Wilson v. State, 515 So. 2d 254 (Fla. 5th DCA 1987); Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987); Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987). . “Latent” is an understatement. The constitutional problems involved in attempting to sentence a defendant a second tim…
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Lloyd v. State, 528 So. 2d 1219 (Fla. 5th DCA 1988)…inapplicable) . See generally Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987), receded from in part, Franklin v. State, 13 F.L.W. 1269 (Fla. 5th DCA May 24, 1988), rev. granted, No. 70,397 (Poore v. State) (Fla. July 22, 1987); Wilson v. State, 515 So. 2d 254 (Fla. 5th DCA 1987). . § 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,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)
- Dolan Robert Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987)