GABRIEL SCHLOSSER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence imposed against the defendant was improperly indefinite because it was conditioned on a federal sentence that had not yet been imposed.
The defendant received a sentence including probation and jail time, with the incarceration to be served concurrently with a federal sentence. However…
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LEHAN, Acting Chief Judge.
We reverse the sentence imposed against defendant. The sentence was two five year terms of probation, one to be consecutive to the other and both to be “consecutive to any other case” and 364 days incarceration in the county jail as a condition of one of those terms of probation, the incarceration to be served “concurrent with the time being served now in the federal sentence.” As the trial court had been advised, no federal sentence had been imposed at the time the probation and the foregoing incarceration were imposed. Thus, the sentence was improperly indefinite. See Richardson v. State, 432 So. 2d 750, 751 (Fla.2d DCA 1983). See also McCall v. State, 475 So. 2d 1364 (Fla.2d DCA 1985).
We do not agree with the state’s argument that because incarceration as a condition of probation is not a sentence, the trial court was free to link the incarceration to an as yet not existent federal sentence. See Van Tassel v. Coffman, 486 So. 2d 528 (Fla.1986) (under certain circumstances a probation order which includes incarceration may be treated as a sentence).
An alternative ground for reversal is that under these circumstances the non-incarcerative portion of the sentence did not necessarily immediately follow the in-carcerative portion. See Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987).
Reversed and remanded for proceedings consistent herewith.
THREADGILL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Humphrey v. State, 579 So. 2d 335 (Fla. 2d DCA 1991)…for racketeering, and a concurrent ten years in prison followed by two years probation for conspiracy to traffic in cocaine. A probationary term that falls between or interrupts an incarcerative sentence or sentences is illegal. Schlosser v. State, 554 So. 2d 1183 (Fla. 2d DCA 1989); Gill v. State, 550 So. 2d 72 (Fla. 2d DCA 1989). Appellant’s two-year probation sentence for racketeering that would precede the completion of the concurrent ten-year prison sentence for conspiracy is such an illegal sentence and…
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Schlosser v. Singletary, 597 So. 2d 304 (Fla. 2d DCA 1991)…v. Mr. Samuel’s, Inc., 351 So. 2d 719 (Fla.1977). We note that Schlosser’s brief goes far beyond the parameters of the mandamus petition. It appears he may also be complaining of a problem along the lines of a previous appeal, Schlosser v. State, 554 So. 2d 1183 (Fla. 2d DCA 1989). Insofar as no such argument was presented to the trial court, we decline to address it. Affirmed. RYDER, A.C.J., and LEHAN and FRANK, JJ., concur.…
Authorities Cited
- Ellis Richardson v. State, 432 So. 2d 750 (Fla. 2d DCA 1983)
- Peter v. VAN Tassel, 486 So. 2d 528 (Fla. 1986)
- Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987)
- McCALL v. State, 475 So. 2d 1364 (Fla. 2d DCA 1985)