JAMES T. FALZONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Falzone appeals his sentence of 18 months incarceration, 18 months community control, and 10 years probation, arguing that community control and probation cannot be imposed together and that incarceration followed by community control constitutes an improper sentencing guideline departure without written reasons. The appellate court reversed and remanded for resentencing, requiring written reasons for any guideline departure if community control is to be imposed with incarceration and probation.
A 'triple split' sentence combining incarceration, community control, and probation is permissible if proper written reasons are given for the guidelines departure; however, no such reasons were provided in this case. Additionally, court costs of $224.50 were improperly imposed without notice and without showing statutory basis.
[1] A "triple split" sentence, consisting of incarceration, community control, and probation, may be imposed if proper written reasons are provided for any departure from sen…
[2] A trial court must provide proper written reasons for a departure from sentencing guidelines when imposing a sentence that includes incarceration followed by community co…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Van Kooten approves Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), which approves the imposition of a "triple split" sentence like that in this case if proper reasons are given for a guidelines departure which would occur from the imposition of incarceration and community control.”
Establishes that triple split sentences are permissible only if proper written reasons for guideline departure are provided
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Join FLexlaw to unlock all legal intelligenceDefendant was sentenced to 18 months incarceration, 18 months community control, and 10 years probation. The trial court also imposed court costs of $…
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LEHAN, Judge.
Defendant appeals from his sentences consisting of 18 months incarceration, 18 months community control, and 10 years probation. He contends that (a) section 948.01(8), Florida Statutes (1985), prohibits the imposition of community control and probation together in one sentence, and (b) that incarceration followed by community control is a departure from the sentencing guidelines requiring proper written reasons which were not provided in this case.
Although the rationale of Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986), might seem to call for an affirmance as to both (a) and (b), Francis was disapproved in State v. Van Kooten, 522 So. 2d 830 (Fla.1988). Van Kooten approves Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), which approves the imposition of a “triple split” sentence like that in this case if proper reasons are given for a guidelines departure which would occur from the imposition of incarceration and community control. See also Johnson v. State, 511 So. 2d 748 (Fla. 5th DCA 1987). No reasons for a guidelines departure were given in this case.
Accordingly, we reverse and remand for resentencing. On remand the trial court may not impose, together with incarceration and probation, community control unless proper written reasons are given for the guidelines departure.
Defendant also contends that court costs in the amount of $224.50 were improperly imposed without notice and without showing any statutory basis therefor. We agree. See Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988). On remand cognizance should be taken of State v. Yost, 507 So. 2d 1099 (Fla.1987).
Reversed and remanded for resentencing consistent with this opinion.
SCHOONOVER, A.C.J., and FRANK, J., concur.
ORDERED that said motion is hereby denied. See Daughtry v. State, 521 So. 2d 208 (Fla. 2d DCA 1988).
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Citator
Cited By
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Elliott v. State, 528 So. 2d 98 (Fla. 2d DCA 1988)…e conclude first that it is not improper to impose a sentence that includes the three types of sentencing alternatives, i.e., incarceration, community control and probation. Cf. Teaford v. State, 524 So. 2d 1162 (Fla. 2d DCA 1988); Falzone v. State, 527 So. 2d 837 (Fla. 2d DCA 1988). However, a sentence that imposes incarceration plus community control, the total terms of which exceed the recommended incarcerative sentence, is a departure sentence for which written reasons must be given. See State v. Van Koot…
Authorities Cited
- State v. Yost, 507 So. 2d 1099 (Fla. 1987)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)
- Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987)
- Daughtry v. State, 521 So. 2d 208 (Fla. 2d DCA 1988)
- Taylor v. State, 511 So. 2d 748 (Fla. 5th DCA 1987)
- Darrin Bartholemew Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988)