TIMOTHY J. CALHOUN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Calhoun appeals his sentences for two counts of burglary of a structure. The appellate court reversed and remanded because the trial court imposed consecutive split sentences that exceeded statutory maximums and included an invalid community service provision with unauthorized gain-time revocation penalties.
The consecutive split sentences were invalid because they exceeded the five-year statutory maximum for third-degree felonies and created an impermissible interrupted sentence structure. The community service provision was invalid because the trial court lacked authority to order revocation of gain time, which is the exclusive province of the Department of Corrections.
[1] A split sentence, combining incarceration and probation, cannot exceed the maximum statutory term for the offense.
[2] Florida law prohibits interrupted sentences where a period of incarceration is followed by probation, then another period of incarceration, and then more probation.
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Join FLexlaw to unlock all legal intelligence“where the court imposes a split sentence, the total sanction (incarceration and probation) may not exceed the maximum term provided by general law”
Establishes the fundamental limitation on split sentences under Florida law that the trial court violated
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Join FLexlaw to unlock all legal intelligenceCalhoun entered negotiated guilty pleas to two counts of burglary of a structure other than a dwelling under section 810.02(3), Florida Statutes. The …
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SHIVERS, Judge.
Appellant, Timothy J. Calhoun, appeals his sentences and an order imposing community service in lieu of court costs. We reverse and remand for resentencing.
Appellant entered negotiated pleas of guilty to two direct informations (Cases 86-117CF and 86-118CF), each charging a single count of burglary of a structure other than a dwelling, a third-degree felony, in violation of section 810.02(3), Florida Statutes (1985). The written plea agreement covered both informations and provided that appellant’s sentence would be within the recommended sentencing guideline range. A sentencing guideline scoresheet was prepared, indicating a recommended range of seven to nine years incarceration. The judgment in Case No. 86-117CF ordered imprisonment for five years followed by two years probation, and allowed 63 days credit for time served. The judgment in Case No. 86-118CF ordered imprisonment for four years followed by two years probation, allowed 63 days credit for time served, and directed “that the sentence imposed for this count shall run consecutive with the sentence set forth in Count I [Case] 86-117CF above.” That judgment further provided that “the composite term of all sentences imposed for the counts specified in this order shall run consecutive ... with ... any active sentence being served.” By separate order referring to both cases, the court found appellant to be indigent, imposed a period of community service in lieu of court costs, pursuant to section 27.3455, Florida Statutes, and stated:
The defendant must complete the period of community service within six months of his release from incarceration. Failure of the defendant to perform the required community service as directed shall result in the revocation of defendant’s gain time and completion of the balance of the original sentence.
Appellant contends that the trial court imposed a sentence of five years incarceration in one case, to be followed by four years incarceration in the second case, to be followed by a term of probation. It is apparent from the explicit provisions in the judgments and sentences, however, as the State contends, that the trial court imposed two consecutive split sentences, i.e., five years incarceration and two years probation in one case, followed by a consecutive split sentence of four years and two years probation in the second case.
The two split sentences imposed are invalid for two reasons. First, where the court imposes a split sentence, the total sanction (incarceration and probation) may not exceed the maximum term provided by general law. Committee Note to Florida Rule of Criminal Procedure 3.701(d)(12). Since the maximum sentence for the third degree felony charged in each information is five years, it is obvious that both sentences exceed that limitation. Second, in order to conform to the judgments as written, appellant would have to serve five years imprisonment, be released to serve two years probation, then be “recalled” to serve four more years imprisonment before again being released to serve two years probation. Such an interrupted sentence is not allowed under Florida Statutes. See Lanier v. State, 604 So. 2d 501 (Fla. 1st DCA 1987); Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980).
Next, the quoted provision in the trial court’s order imposing community service is invalid. As held in Causey v. State, 504 So. 2d 34 (Fla. 1st DCA 1987), the circuit court has no authority to order the summary revocation of gain time as part of a sentence, because “[s]uch power is the exclusive province of the Department of Corrections, and even its power ceases upon the prisoner’s release from incarceration.” 504 So. 2d at 35. On remand, appellant is to be resentenced pursuant to the amended section 27.3455, Florida Statutes (1987), which deletes both the option of imposing community service in lieu of costs for indigent defendants and the penalty provision for failure to pay fines. Riddell v. State, 509 So. 2d 956 (Fla. 1st DCA 1987); Brown v. State, 508 So. 2d 776 (Fla. 1st DCA 1987); Jones v. State, 507 So. 2d 763 (Fla. 1st DCA 1987).
Accordingly, we reverse and remand for resentencing within the recommended sentencing guidelines and for rehearing on the issue of costs.
REVERSED and REMANDED.
ZEHMER and THOMPSON, JJ., concur.
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Cited By (16 total)
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Sanchez v. State, 538 So. 2d 923 (Fla. 5th DCA 1989)…ed by three years probation and then be recalled to serve another two year term of community control followed by three years probation. The defendant contends that this is similar to the interrupted sentence imposed and rejected in Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988). In Calhoun, the defendant was convicted and sentenced in two cases involving burglary. His recommended guidelines sentence was seven to nine years imprisonment. The trial judge imposed two consecutive split sentences, that is,…
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Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991)…on County prison terms. He asserted that a determination that his probation term began only after his release from prison in the Leon County cases would transform his Gadsden County sentences into an unlawful intermittent sentence. Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988); Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987). Based on the following reasoning, the judge below rejected that argument and determined that appellant is still subject to the term of probation: 4. It is well settled that…
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McDONALD v. State, 564 So. 2d 523 (Fla. 1st DCA 1990)…al sentence imposed upon appellant was 17 years, which was within the guidelines recommendation. Imposing the three-year mandatory minimum consecutively to the 14-year term did not result in a piecemeal or fragmented sentence as in Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988) and Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987), and therefore can be upheld. See Perez v. State, 524 So. 2d 720 (Fla. 3d DCA 1988) and Drew v. State, 478 So. 2d 69 (Fla. 5th DCA 1985). Therefore, we approve the running o…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980)
- Brown v. State, 508 So. 2d 776 (Fla. 1st DCA 1987)
- Jones v. State, 507 So. 2d 763 (Fla. 1st DCA 1987)
- Riddell v. State, 509 So. 2d 956 (Fla. 1st DCA 1987)
- Causey v. State, 504 So. 2d 34 (Fla. 1st DCA 1987)