CHRISTOPHER B. ASHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Christopher Ashe appeals his probation revocation and the resulting sentence. The Fourth District Court of Appeal reversed and remanded, holding that under Poore v. State, a sentencing judge cannot impose new incarceration exceeding the suspended portion of the original split sentence after probation violation.
The trial court erred in imposing a sentence exceeding the suspended portion of the original sentence. Under Poore v. State, once jeopardy attaches by beginning to serve a sentence, the original sanction cannot be increased unless subsequent events reveal new information about the defendant's conduct. Therefore, a sentencing judge may not order new incarceration exceeding the remaining balance of the suspended portion of the original sentence.
[1] A trial court may not impose a new period of incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence when a defenda…
[2] Jeopardy attaches when a prisoner begins serving a sentence, and the original sanction cannot be increased unless subsequent events shed new light on the defendant's cond…
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“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 rule from Poore v. State that limits the trial court's sentencing authority following probation revocation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAshe was convicted in 1985 of grand theft and strong arm robbery. He received a split sentence: four years in prison plus two years on probation for g…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse True Split Sentence cases and more on FLexlaw
PER CURIAM.
This is an appeal of a revocation of probation. The defendant/appellant, Christo pher Ashe, was convicted of grand theft and strong arm robbery in 1985. He was sentenced to a term of six years in the Department of Corrections for the grand theft. Four years of the term was to be served in prison and the remainder was to be served on probation for two years, with credit for 128 days served.1 Additionally, Ashe was sentenced to fifteen years on probation for strong arm robbery, to run consecutive to the sentence for grand theft.
On July 7, 1986, Ashe was released on furlough on an early release type of program under which he was required to report to the corrections department.
The record indicates that Ashe completed the confinement portion of his sentence. Thereafter Ashe failed to report to the correct office for the probation portion of his sentence and absconded from the jurisdiction. He was arrested in October, 1986 in California while in possession of stolen property. Affidavits of violation of probation were filed against Ashe in Florida. At the revocation hearing Ashe admitted that he had gone to California in violation of the probation.
The trial court found Ashe to be in violation and revoked his probation. Ashe was sentenced on the grand theft to five years imprisonment with credit for 715 days served. On the robbery he was sentenced to fifteen years in prison with credit for 715 days time served.
Ashe makes two arguments on appeal. We find it necessary to address only the second argument concerning the sentence imposed after revocation. Ashe argues that pursuant to Poore v. State, 531 So. 2d 161 (Fla.1988) the trial court erred in sentencing him to a prison sentence greater than the suspended portion of his original split sentence, that is, greater than two years.
In Poore the defendant was sentenced to four-and-one-half years in the Department of Corrections with two-and-one-half years on probation. After the defendant served the incarceration portion of his sentence he violated his probation and the trial court imposed a sentence of four-and-one-half years of incarceration with credit for time served.
On appeal the supreme court vacated the sentence. The supreme court explained that jeopardy attaches when a prisoner begins serving a sentence. That original sanction cannot be increased unless there are subsequent events which throw new light on the defendant’s conduct. As a result, if a true split sentence is imposed as the original sentence, then “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.” 531 So. 2d at 164 (emphasis added). In the instant case the trial court erred in sentencing Ashe to a term greater than the suspended portion of his original sentence.
Reversed and remanded for further consistent proceedings.
GLICKSTEIN and WALDEN, JJ., concur. GARRETT, J., concurs specially with opinion.
. This was a “true split sentence” since it consisted of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for the suspended portion. Poore v. State, 531 So. 2d 161, 164 (Fla.1988).
GARRETT, Judge,
concurring specially.
On February 6,1985 appellant entered no contest pleas to charges of grand theft and robbery. As a youthful offender, on the grand theft charge appellant received a “split sentence” of four years imprisonment with jail credit of 128 days to be followed by two years of community control. On the robbery charge appellant was placed on probation for a period of fifteen years to run consecutive.
On March 3, 1985 appellant arrived at the Indian River Correctional Institution (IRCI) to begin serving the prison portion of his “split sentence.”
After serving 432 days at IRCI, on May 9, 1986 the Department of Corrections (DOC) transferred appellant to a community work release program at the Lake City correctional facility.
Fifty-nine days later, on July 7, 1986 DOC assigned appellant to live with his mother under supervised community release. On October 1,1986 a Florida correctional probation officer wrote appellant that his term of supervised community release had been completed as of that date. The letter concluded as follows: “Best wishes for a very successful future.”
On October 4, 1986 California authorities arrested appellant for auto theft.
On October 23, 1986 DOC filed an affidavit alleging appellant violated probation by failing to report to his probation office within seventy-two hours of being released on July 7, 1986 and by committing the California crime.
California sentenced appellant to two years in prison and in January of 1988 extradited him to Florida.
On March 23, 1988 the trial judge revoked appellant’s probation and imposed a five-year jail sentence on the grand theft charge and a fifteen-year jail sentence on the robbery charge to run consecutive with credit for 715 days time served.
Like Poore and Chapman, appellant had completed the imprisonment portion of his “split sentence” before the probation portion was revoked. Termination of appellant’s supervised community release completed the prison part of his “split sentence.” It should be noted the state revoked appellant’s probation (community control), not his prison release status.
Except as limited by the guidelines one-cell upward increase, with credit for any appropriate time served and earned gain-time, the trial judge could resentence appellant to serve all of the two-year probation period of the original grand theft “split sentence” and all of the consecutive fifteen-year probation period of the original robbery sentence. The appellant could not be resentenced to serve any additional jail time on the completed imprisonment portion of his “split sentence.” See State v. Green, 547 So. 2d 925 (Fla.1989); Franklin v. State, 545 So. 2d 851 (Fla.1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cooper v. State, 553 So. 2d 1371 (Fla. 2d DCA 1989)…ttee) to change his or her mind on that question. Id. at 164-65. Following this rationale, we conclude that the trial court erred in sentencing the appellant to a term greater than the suspended portion of his original sentence. See Ashe v. State, 548 So. 2d 291 (Fla. 4th DCA 1989). The state argues that the one-cell increase is allowable under Franklin v. State, 545 So. 2d 851 (Fla.1989). We disagree. Franklin merely restated what was said in Poore, that upon violation of probation in a true split sentenc…
-
Priest v. State, 603 So. 2d 141 (Fla. 4th DCA 1992)…ion of his original sentence. Arnold v. State, 578 So. 2d 515, 516 (Fla. 4th DCA 1991) (citing State v. Johnson, 483 So. 2d 420, 422 (Fla.1986) (the violation of a constitutional double jeopardy right is fundamen [*142] tal error). In Ashe v. State, 548 So. 2d 291 (Fla. 4th DCA 1989), this court stated: Ashe argues that pursuant to Poore v. State, 531 So. 2d 161 (Fla.1988) the trial court erred in sentencing him to a prison sentence greater than the suspended portion of his original split sentence, that is,…
-
Baker v. State, 736 So. 2d 807 (Fla. 3d DCA 1999)…nce: Baker was sentenced to a specific prison term, 20 years, but was to be released after serving ten of those years, with the remaining years to be served on probation. See Bryant v. State, 591 So. 2d 1102, 1103 (Fla. 5th DCA 1992); Ashe v. State, 548 So. 2d 291 (Fla. 4th DCA 1989). Upon revocation of probation, the court erred in imposing a sentence in excess of the Baker’s remaining sentence. Based on the foregoing reasons, the sentence is reversed and the cause remanded with instructions to resentence…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)