RANDY COOPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randy Cooper appeals his probation revocation sentence, where the trial court imposed a 12-year prison term upon finding a violation of probation. The court reverses, holding that under the "true split sentence" doctrine, a sentencing judge cannot impose new incarceration exceeding the originally suspended portion of the sentence.
The trial court erred in sentencing Cooper to more than the one-year suspended portion of his original sentence. Under Poore v. State, when a defendant violates probation on a true split sentence, the judge may only impose new incarceration up to the suspended portion or apply the one-cell increase provision, whichever is less.
[1] A trial court may not impose a new period of incarceration that exceeds the remaining balance of the withheld or suspended portion of a true split sentence.
[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…
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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 core rule governing probation revocation sentences in true split sentences under Poore v. State
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Join FLexlaw to unlock all legal intelligenceCooper pleaded nolo contendere to DUI-manslaughter and received a split sentence of seven years incarceration with one year suspended and served on pr…
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THREADGILL, Judge.
Randy Cooper appeals his sentence following revocation of probation. We reverse.
The appellant pled nolo contendere to a charge of DUI-manslaughter and was scored at three to seven years on the guidelines scoresheet. He was sentenced to a “true split sentence” of seven years incarceration, with one year suspended to be served on probation. See Poore v. State, 531 So. 2d 161, 164 (Fla.1988). The appellant served six years with gain time, and was released on probation. While on probation he was charged with violating his probation by consuming alcohol. The trial court found him in violation of probation, imposed the one-cell increase provision of Florida Rule of Criminal Procedure 3.701(d)(14), and sentenced the appellant to twelve years imprisonment.
The appellant 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 one-year suspended portion of his original split sentence. We agree.
In Poore, the supreme court defined a “true split sentence” as 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. The court held that upon violation of a true split 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 sen-tence_ The possibility of the violation already has been considered, albeit prospectively, when the judge determined the total period of incarceration and suspended a portion of that sentence, during which the defendant would be on probation. In effect, the judge has sentenced in advance for the contingency of a probation violation, and will not later be permittee) 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 sentence, the trial judge may reimpose the balance of the suspended sentence or the one cell increase of rule 3.701(d)(14), whichever is less. This is consistent with the majority holding in Poore.
Since we conclude that this was a true split sentence, controlled by Poore, no new incarceration could be imposed upon the appellant for the violation of probation. The sentencing judge at the violation hearing could have allowed the appellant to remain on probation or could have returned him to prison to complete all or part of the suspended portion of his sentence. See Poore v. State, 503 So. 2d 1282, 1284 (Fla. 5th DCA 1987); Poore v. State, 531 So. 2d 161, 165 (Fla.1988), McDonald, J., dissenting.
We, therefore, reverse and remand for resentencing.
LEHAN, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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LEE v. State, 666 So. 2d 209 (Fla. 2d DCA 1995)…ence imposed in January 1993. The flaw in Mr. Lee’s argument is his failure to appeal the August 1993 sentence when it was initially imposed. If he had done so, we would have reversed the sentence and remanded for resentencing. See Cooper v. State, 553 So. 2d 1371 (Fla. 2d DCA 1989). At that resentencing, however, he could have received 17 years in prison rather than community control. By accepting the benefit of community control, he waived his right to enforce the earlier true split sentence. Ulmer v. State…
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Amos Jerome Brown v. State, 610 So. 2d 74 (Fla. 2d DCA 1992)…a true split sentence is imposed, the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the suspended portion of the original sentence. Poore v. State, 531 So. 2d 161, 164 (Fla.1988); Cooper v. State, 553 So. 2d 1371 (Fla. 2d DCA 1989). The trial court in this case erred in imposing a sentence of fifteen years’ imprisonment because such a sentence exceeds the balance of the suspended portion of the original sentence, namely twelve years. Accordingly, we revers…
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Jones v. State, 671 So. 2d 296 (Fla. 5th DCA 1996)…been placed on straight probation or a split sentence, and then violated probation, different rules would apply. The court could then impose any lawful guideline sentence. Poore; Priest v. State, 603 So. 2d 141 (Fla. 4th DCA 1992); Cooper v. State, 553 So. 2d 1371 (Fla. 2d DCA 1989). The sentence is vacated and remanded for resentencing to two years in prison. GOSHORN and HARRIS, JJ., concur.…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)
- Ashe v. State, 548 So. 2d 291 (Fla. 4th DCA 1989)