RONNIE ROACHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronnie Roache appealed his forgery conviction and sentence. The court affirmed his conviction but reversed and remanded for resentencing because the trial court imposed an illegal split sentence and provided invalid reasons for departure from sentencing guidelines.
The court affirmed the conviction but reversed the sentence on two grounds: (1) the split sentence of five years incarceration plus one year probation exceeded the five-year maximum statutory penalty for forgery, making it illegal; and (2) the trial court's stated reasons for departure were invalid under controlling precedent.
[1] A split sentence's combined term of incarceration and probation may not exceed the maximum term allowed by general law.
[2] A forgery conviction does not necessarily constitute an escalation of criminal activity sufficient to justify a departure from sentencing guidelines when the defendant's…
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Join FLexlaw to unlock all legal intelligence“the total of the incarcerative and probationary portions of a split sentence may not exceed the term provided by general law”
Establishes the legal principle that made the imposed split sentence illegal under Florida law.
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Join FLexlaw to unlock all legal intelligenceRoache was convicted of forgery and sentenced to five years incarceration followed by one year probation. The trial court departed from the 372 to 472…
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SHIVERS, Chief Judge.
Appellant, Ronnie Roache, appeals both his conviction and sentence for forgery. We find no merit to the arguments raised in connection with appellant’s conviction and, consequently, we affirm the judgment of guilt. We reverse and remand for re-sentencing, however, on two separate bases.
The trial court sentenced Roache to five years incarceration followed by one year probation, stating two reasons for departure from the 372 to 472 year presumptive guideline sentence: (1) that appellant had an escalating pattern of criminal activity and (2) that all prior efforts to rehabilitate appellant had been unsuccessful, making him “not a candidate for rehabilitation.” First, it is established that the total of the incarcerative and probationary portions of a split sentence may not exceed the term provided by general law. Coleman v. State, 496 So. 2d 896 (Fla. 2d DCA 1986); State v. Holmes, 360 So. 2d 380 (Fla.1978).
See also Committee Note to Rule 3.701(d)(12), Fla.R.Crim.P. Since the maximum statutory penalty for forgery is five years, sections 831.01, 775.082(3)(d), Florida Statutes, the split sentence imposed in this case is illegal.
Second, neither of the two reasons stated by the trial court support a guideline departure in this ease. The pre-sentence investigation report (PSI) contained in the record on appeal indicates that Roache has a rather lengthy criminal history, beginning with petit theft as a juvenile, and progressing to robbery, burglary, aggravated battery, and escape. In the two years immediately prior to the instant offense, the PSI indicates one incident of driving without a tag, one altered tag and failure to carry valid registration, one DUI, and three instances of driving with a revoked license. Although the forgery conviction may constitute an escalation over the three most recent driver’s license offenses, it constitutes a decrease in severity in appellant’s overall criminal history.
Moreover, it does not represent the type of escalation from crimes against property to violent crimes against persons involved in the “typical case” approving escalating pattern of criminal activity as a reason for departure. Cox v. State, 508 So. 2d 1318 (Fla. 1st DCA 1987); Keys v. State, 500 So. 2d 134 (Fla.1986).
The court’s second reason for departure is also invalid under this court’s holding in Harris v. State, 489 So. 2d 838 (Fla. 1st DCA 1986). As in Harris, the trial court in the instant case seems to have been expressing a decision between a recommended sentence involving rehabilitation only and a departure sentence involving restraint for the maximum statutory term. Since the recommended sentence in the instant case was 372 to 472 years and the maximum statutory sentence was five years, this reason is unclear and invalid.
Accordingly, we affirm appellant’s conviction; we vacate the sentence and remand for resentencing within the guidelines range. Schull v. Dugger, 515 So. 2d 748 (Fla.1987).
BOOTH and BARFIELD, JJ., concur.
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Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992)…st DCA 1990); Gainey v. State, 557 So. 2d 887, 888 (Fla. 1st DCA 1990). Similarly, it is well settled that the total of the incarcerative and probationary portions of a split sentence may not exceed the term provided by general law. Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Bono v. State, 553 So. 2d 293, 294 (Fla. 1st DCA 1989). Burglary of a conveyance is a third degree felony, see § 810.-02(3), Fla.Stat.(1989), for which the maximum penalty is five years. See § 775.-082(3)(d), Fla.Stat.(1989…
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Walker v. State, 604 So. 2d 913 (Fla. 1st DCA 1992)…a sentence combining incarceration and probation, the total of the incarcerative and probationary portions of the sentence may not exceed the maximum term provided by general law. Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992); Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991). Second, a period of probation “shall commence immediately upon the release of the defendant from incarceration.” § 948.-01(8), Fla.Stat. (1987); Horner v. State, 597 So. 2d…
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Latham v. State, 596 So. 2d 140 (Fla. 1st DCA 1992)…tate, 557 So. 2d 630 (Fla. 1st DCA 1990); Copeland v. State, 553 So. 2d 384 (Fla. 1st DCA 1989). Similarly, the total of the incarcerative and probationary periods of a split sentence may not exceed the term provided by general law. Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989). Further, where a sentencing scheme involves periods of incarceration or community control followed by periods of probation, the statutes do not authorize intermittent periods of incarceration and probation. Rather, the inca…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Coleman v. State, 496 So. 2d 896 (Fla. 2d DCA 1986)
- COX v. State, 508 So. 2d 1318 (Fla. 1st DCA 1987)
- Harris v. State, 489 So. 2d 838 (Fla. 1st DCA 1986)