NANCY ANN BURNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reviewed a sentence imposed on a defendant who pleaded guilty to grand theft. The court found that the sentence, which included a split sentence of incarceration and probation, was illegal because it was based on an amended rule that disadvantaged the defendant, violating ex post facto principles.
Yes, the split sentence was illegal. The court held that applying the amended rule, which allowed for a longer total sanction than the original rule, constituted an ex post facto penalty because it disadvantaged the defendant.
[1] A split sentence combining incarceration and probation cannot exceed the maximum guideline range in effect at the time of the offense, absent clear and convincing written…
[2] Imposing a sentence based on a subsequent amendment to sentencing guidelines that disadvantages the defendant constitutes a prohibited ex post facto penalty.
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“If a split sentence is imposed (i.e. a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.”
This quote from the committee note in effect at the time of the offenses establishes the sentencing limitation that was later amended.
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Join FLexlaw to unlock all legal intelligenceNancy Ann Burns pleaded guilty to eight counts of grand theft. The trial court imposed a split sentence of three and one-half years incarceration foll…
The full statement of facts, procedural history, and disposition for this case are member content.
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FRANK, Judge.
Nancy Ann Burns has appealed from the sentence and costs imposed following her plea of guilty to eight counts of grand theft, a second degree felony. We have thoroughly considered Bums’ arguments and find that her points concerning restitution, costs, attorney’s fees, and credit for time served have no merit. The sentencing issue she raises does, however, require discussion.
Burns contends, and the state concedes, that under the version of Rule 3.701(d)(12), Florida Rules of Criminal Procedure, and its attendant committee note in effect at the time she committed the thefts, the court imposed an illegal split sentence of three and one-half years of incarceration to be followed by thirty years of probation. The applicable committee note provided that: “If a split sentence is imposed (i.e. a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.” Subsequently the note was amended to provide that the total sanction shall not exceed the term provided by general law, and this was the provision the judge apparently considered in sentencing Burns. The effect of the amendment, in this case, was to disadvantage the defendant, because the judge had attempted to sentence her within the guidelines and expressed no reasons, written or oral, that would suggest he intended to depart from the guidelines.
Thus, the maximum split sentence she could have received without clear and convincing written reasons for departure, was three and one-half years. Miller v. Florida, — U.S. -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), condemns a sentence imposed pursuant to a guidelines amendment effective subsequent to the commission of the offense; such sentence constitutes a prohibited ex post facto penalty if the change in the law disadvantages the defendant.
Accordingly, we vacate the sentence and remand for resentencing within the guidelines in effect at the time the crimes were committed.
RYDER, A.C.J., and LEHAN, J., concur.
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Citator
Cited By
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Tyner v. State, 545 So. 2d 961 (Fla. 2d DCA 1989)…that results in the imposition of a harsher sentence than that which would have been imposed under an earlier version of the guidelines in effect at the time the crime was committed constitutes an ex post facto violation. See, e.g., Burns v. State, 528 So. 2d 78 (Fla. 2d DCA 1988). . In light of the Florida Supreme Court’s holding in Smith v. State, 537 So. 2d 982 (Fla.1989), July 1, 1984 is a significant date in an ex post facto analysis for two reasons. First, that date is now determined to be the effect…
Authorities Cited
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)