ALBERT NELSON BICKOWSKI APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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COBB, Judge.
In January, 1987, Albert Bickowski pled guilty to grand theft, a third degree felony, and was given five years probation. On November 13,1987, he pled guilty to violating that probation, was adjudicated guilty of grand theft, and sentenced to a “true split sentence” of five years with forty months suspended after service of twenty months in the Department of Corrections. See McKee v. State, 528 So. 2d 417 (Fla. 5th DCA 1988). The maximum guideline incar-cerative period was thirty months.
The November 13th sentence was legal. See Carr v. State, 528 So. 2d 406 (Fla. 5th DCA 1988); Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988). Unfortunately, in an order filed December 10, 1987, the trial judge entered a nunc pro tunc “Order of Modification of Probation,” which apparently purports to add an additional forty months of probation to follow the forty months of probation imposed on November 13, 1987, as part of the split sentence.
The December, 1987 nunc pro tunc order was void since sentence for the grand theft (the only crime before the court for sentencing purposes) had already been imposed. That order is quashed. The sentence is otherwise affirmed.
SENTENCE AFFIRMED; ORDER OF MODIFICATION QUASHED. ORFINGER, J., concurs.
COWART, J., concurs in part, dissents in part with opinion.
COWART, Judge,
concurring in part, dissenting in part.
The nunc pro tunc Order of Modification. of Probation filed December 10, 1987, is so cryptic and unclear that its intended purpose and effect cannot be determined. It should be declared void. The original sentence of five years’ incarceration, while split with 20 months to be immediately served and the balance of 40 months suspended subject to the successful completion of probation, in my opinion, exceeds the maximum guideline recommended sentence of 30 months for the reasons set forth in the dissents in Carr v. State, 528 So. 2d 406 (Fla. 5th DCA 1988); McKee v. State, 528 So. 2d 417 (Fla. 5th DCA 1988); Gulker v. State, 528 So. 2d 434 (Fla. 5th DCA 1988); Hankey v. State, 529 So. 2d 736 (Fla. 5th DCA 1988); Lloyd v. State, 528 So. 2d 1219 (Fla. 5th DCA 1988) and Williams v. State, 528 So. 2d 453 (Fla. 5th DCA 1988).
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Citator
Cited By
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Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)…2d 791, 792 (Fla. 2d DCA 1985). Dailey has begun to serve his sentence. Therefore, while the court can impose restitution to make his sentence legally complete, it cannot now add a probationary term to his original sentence. See Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988). To do so [*239] would constitute an unauthorized enhancement. Florida Rule of Criminal Procedure 3.800 provides for reduction or modification of sentences, but there is no provision for subsequent enhancement of a legal sentence…
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Sterling v. State, 682 So. 2d 694 (Fla. 5th DCA 1996)…sier v. Moe, 485 So. 2d 46 (Fla. 4th DCA 1986). The addition of a probationary term also represents an increase in a sentence. Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991); Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988). The state argues that Sterling waived his right to object to the increase in sentence, by accepting the condition of probation. However, a party cannot stipulate to jurisdiction when a court lacks it. White v. State, 404 So. 2d…
Authorities Cited
- Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)
- McKEE v. State, 528 So. 2d 417 (Fla. 5th DCA 1988)
- Carr v. State, 528 So. 2d 406 (Fla. 5th DCA 1988)
- Hankey v. State, 529 So. 2d 736 (Fla. 5th DCA 1988)
- Williams v. State, 528 So. 2d 453 (Fla. 5th DCA 1988)
- Gulker v. State, 528 So. 2d 434 (Fla. 5th DCA 1988)
- Lloyd v. State, 528 So. 2d 1219 (Fla. 5th DCA 1988)