DARRELL KEITH WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilson appeals his sentence for burglary committed while on active probation. The trial court imposed five years of consecutive probation with a fifty-one week jail condition, but both parties conceded this violated Florida law because it imposed a harsher punishment after a lighter one. The appellate court corrected the illegal sentence structure.
The trial court must correct the sentence so that the active probation runs concurrently with the current probation sentence, with the fifty-one week jail condition running simultaneously with both probationary terms. The trial court alternatively may revoke probation in the prior case.
[1] A sentence is unlawful if it imposes a harsher punishment to follow a less severe punishment.
[2] A trial court may not impose a sentence that requires community control to follow probation, as community control is a harsher punishment.
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Join FLexlaw to unlock all legal intelligence“Both sides concede that the trial judge erred as a matter of law in imposing this sentence.”
Establishes that the parties agreed the sentencing structure violated Florida law.
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Join FLexlaw to unlock all legal intelligenceWilson committed burglary of a structure while on active probation for unrelated offenses. At sentencing, the trial judge imposed five years of probat…
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SHARP, Judge.
Wilson appeals from his sentence imposed by the trial court after he pled guilty to burglary of a structure.1 At the time Wilson committed the burglary and at the time of sentencing, he was on active probation for unrelated offenses. However, the trial judge did not revoke this probation. Instead, he sentenced Wilson to five years probation to be served consecutively to the active probation term, on the condition that Wilson serve fifty-one weeks in the Putnam County Jail. Wilson would serve the jail time first, then the balance on probation for the prior offense, and then the probation for the current offense. Both sides concede that the trial judge erred as a matter of law in imposing this sentence. See Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988). Rozmestor v. State, 381 So. 2d 324 (Fla. 5th DCA 1980). However, they differ in their proposed remedies to correct this error. The state urges that Wilson first serve the currently active probation, and then serve the probation imposed in’ this case, commencing with the condition of fifty-one weeks in jail. We reject this proposition based on the rationale in Calhoun, and on our opinion in Sanchez v. State, 538 So. 2d 923, 924 (Fla. 5th DCA 1989) where we reversed sentences which required community control to follow probation, because community control is a harsher and more severe punishment than probation.
Wilson urges that the proper remedy is to order the instant probation to run concurrently with the active probation, or eliminate the fifty-one week jail term. Elimination of the “consecutive” status between the two probationary periods resolves the problem that a harsher punishment (jail time) would follow a less severe one (probation). However, we are not inclined to eliminate the fifty-one week jail term imposed by the trial court, for such was clearly the sentencing intent of the trial judge.
We therefore direct the trial court to correct the sentence so that the active probation sentence runs simultaneously with the current sentence of probation, conditioned on the jail term. Wilson should begin serving the fifty-one weeks immediately, during which time his active probation sentence will also run. An additional option open to the trial court on remand is to revoke probation in the prior case.
QUASH SENTENCE and REMAND for resentencing.
COBB, J., concurs.
COWART, J., dissents without opinion.
. § 810.02, Fla.Stat. (1987).
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Citator
Cited By
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Kerklin v. Godwin, 747 So. 2d 956 (Fla. 2d DCA 1999)…See Segal v. Wainwright, 304 So. 2d 446 (Fla.1974) (trial court erred in ordering defendant to serve one-year sentence for receipt of stolen property where defendant had not finished serving sentence on earlier robbery conviction); Wilson v. State, 547 So. 2d 1049, 1049 (Fla. 5th DCA 1989) (trial court erred in sandwiching an active probation sentence between fifty-one weeks in county jail and five years’ probation to be served on a separate offense); Rozmestor v. State, 381 So. 2d 324, 326 (Fla. 5th DCA 1980…
Authorities Cited
- Rozmestor v. State, 381 So. 2d 324 (Fla. 5th DCA 1980)
- Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988)
- Sanchez v. State, 538 So. 2d 923 (Fla. 5th DCA 1989)