JUNIOR CHAPMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Junior Chapman appealed his probation revocation sentence, contending that the new five-year prison sentence would deprive him of previously earned gain time. The Florida Fourth District Court of Appeal reversed and remanded, holding that when a trial court imposes a "true split sentence" with a suspended portion, any new incarceration upon probation violation cannot exceed the length of the originally suspended portion.
Upon revocation of probation imposed in a "true split sentence," the length of any new incarceration may not exceed the length of the originally suspended portion of the original sentence. A defendant is not entitled to credit for gain time as a matter of right; any credit for previous gain time earned is solely a function of the Department of Corrections.
[1] A defendant is not entitled to credit on a sentence for any time other than that actually served.
[2] Credit for previously earned gain time is a function of the Department of Corrections.
Previewing 2 of 4 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“However, if alternative (2) is used as the original sentence, the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence.”
Establishes the controlling principle from Poore v. State that limits the trial court's sentencing authority upon probation revocation in a true split sentence case.
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Join FLexlaw to unlock all legal intelligenceChapman was initially sentenced to five years in prison, with the last two years suspended and the defendant placed on probation. He was released afte…
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STONE, Judge.
The appellant was initially sentenced to five years in prison, of which the last two years were suspended with the defendant placed on probation. He was released, after serving the first portion of his sentence, with credit for gain time. The defendant violated probation and was again sentenced to five years in prison, with a credit for all time previously served.
Appellant contends that the effect of this sentence will be to deprive him of the gain time he has previously earned. However, as a general rule a defendant is not entitled to a credit on his sentence for any time other than that actually served. E.g. Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988). Any credit for previous gain time earned is solely a function of the Department of Corrections. Cf. Hall v. State, 493 So. 2d 93 (Fla. 2d DCA 1986); Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985). Nevertheless, we reverse because the maximum sentence that the trial court could impose in this case was the two year term of the suspended portion of the original sentence. See Poore v. State, 531 So. 2d 161 (Fla.1988).
The original sentence in this case was a “true” split sentence. See Poore v. State, 531 So. 2d at 164. In Poore, the supreme court adopted a statement from Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988) (en banc), recognizing that under Florida Rule of Criminal Procedure 3.986, one of the alternatives available to a judge at sentencing is to withhold a portion of a term of imprisonment and place a defendant on probation for the withheld portion with the understanding that upon revocation of probation, the withheld portion of the sentence will reactivate ....
Poore at 164. (emphasis added)
In Poore, the supreme court discussed the various methods of combining probation with incarceration, designating the type imposed here as (2) a “true split sentence” consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion; ...
Id. at 164. After comparing the true split sentence with the other alternatives the court then added,
However, if alternative (2) is used as the original sentence, the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence.
Id. at 164. (emphasis added)
Although the supreme court in Poore did not have to reach the issue before us, it follows that upon a violation of the probation imposed in a “true” split sentence, the length of sentence may not exceed the length of the term of the suspended period, the limits of which were established in the initial sentence.
We note that the trial court here did not have the benefit of Poore v. State at the time of imposing this sentence. With respect to the remaining issues raised, we find no error. Reversed and remanded for resentencing in accordance with this opinion.
DOWNEY and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Green, 547 So. 2d 925 (Fla. 1989)…strict Court of Appeal being approved in this case are holdings of the Third, Fourth, and Fifth District Courts of Appeal. Cole v. State, 14 F.L.W. 1138 (Fla. 3d DCA May 9, 1989); Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989); Chapman v. State, 538 So. 2d 965 (Fla. 4th DCA 1989); Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1989). Even the First District Court of Appeal must be in doubt because a subsequent panel of that court has refused to award credit for gain-time. Carter v. State, 14 F.L.W. 946 (Fl…
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Cole v. State, 550 So. 2d 1129 (Fla. 3d DCA 1989)…actually served in prison.2 E.g., Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988), rev. denied, 539 So. 2d 475 (Fla.1988); State v. Holmes, 360 So. 2d 380 (Fla.1978); Chaitman v. State, 495 So. 2d 1231 (Fla. 5th DCA 1986); cf. Chapman v. State, 538 So. 2d 965 (Fla. 4th DCA 1989) (court could only impose un-served portion of “true” split sentence). If this holding is in conflict with Green v. State, 539 So. 2d 484 (Fla. 1st DCA 1988), we expressly state our disagreement with that decision. Affirmed in pa…
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Drayton v. State, 549 So. 2d 698 (Fla. 4th DCA 1989)…e for the contingency of a probation violation, and will not later be permitted to change his or her mind on that question, (emphasis in original) Poore, 531 So. 2d at 164-165. Accord Franklin v. State, 545 So. 2d 851 (Fla. 1989); Chapman v. State, 538 So. 2d 965 (Fla. 4th DCA 1989). Thus, according to Poore, upon violating a condition of his community control, the appellant in this case could only be sentenced to a period of time which would not exceed the suspended portion of his original sentence. Conseq…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)
- Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985)
- Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988)
- Black v. Unemployment Appeals Comm'n, 493 So. 2d 93 (Fla. 5th DCA 1986)
- Hall v. State, 493 So. 2d 93 (Fla. 2d DCA 1986)