MICHAEL GLASS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1990-01-31
No. 89-448
THOMPSON and BARFIELD, JJ., concur.
556 So. 2d 465 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 38 cases

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.

Synopsis

Michael Glass appealed sentences imposed for violation of probation on forgery and uttering forged instruments charges. The court vacated and remanded for resentencing because the combined incarceration and probation periods exceeded the statutory maximum, but affirmed the split sentence structure itself while certifying a double jeopardy question to the Florida Supreme Court.


Holding

The court held that the total sanction of 7½ years exceeded the statutory maximum and vacated the sentences for resentencing within statutory limits. However, the court affirmed the split sentence structure itself, though it certified to the Supreme Court the question of whether split sentences violate double jeopardy when not explicitly authorized by statute.


Headnotes

[1] A split sentence, combining incarceration and probation, cannot exceed the statutory maximum incarceration period for the offense charged.

[2] A split sentence imposed for a third-degree felony cannot exceed the statutory maximum of five years' imprisonment.

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Key Quotes

“When a defendant is sentenced to a "split sentence" as provided by statute, the combined periods of incarceration and probation at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged.”

Establishes the legal standard that governs split sentences and explains why the 7½-year total sanction was improper.

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Facts & Procedural History

Glass pleaded guilty to one count of forgery of a $12.11 check and four counts of uttering forged instruments involving checks of $25, $20, $23, and $…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

Defendant Michael Glass appeals the sentences imposed upon his violation of probation. The court ordered him to serve concurrent sentences of 30 months in prison and 5 years’ probation, a total sanction of 7V2 years, for two third-degree felony convictions. After being initially charged, he pleaded guilty to a one-count information charging forgery of a check in the amount of $12.11 in violation of section 831.01, Florida Statutes (case no. 88-134), and to a second information charging four counts of uttering a forged instrument in violation of section 831.02, Florida Statutes, involving checks in the amounts of $25.00, $20.00, $23.00, and $22.00, respectively (case no. 88-138).

Glass was placed on probation with the condition that he “receive a guidelines sentence” and “pay restitution on all checks, filed and not filed, [and] if defendant violates probation, state will file all unfiled charges.”

On December 2, 1988, the probation officer filed an affidavit of Glass’s violation of probation. Finding that Glass had violated the conditions of probation, the judge sentenced him in case no. 88-134 to a term of 30 months’ incarceration to be followed by a period of 5 years’ probation, with 44 days’ jail credit, the sentence to run concurrent with that in case no. 88-138. In case no. 88-138, he was sentenced to 30 months’ incarceration followed by a period of 5 years’ probation as to count I, which sentence was to run concurrent with the same sentences set forth in counts II, III, and IV. Glass contends and the state now concedes that the court erred in imposing a total sanction of 7½ years for each offense where the underlying offense is a third-degree felony carrying a statutory maximum penalty of 5 years’ imprisonment. See sections 831.02, 775.082(3)(d), Florida Statutes (1987).

When a defendant is sentenced to a “split sentence” as provided by statute, the combined periods of incarceration and probation at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged. State v. Holmes, 360 So. 2d 380, 383 (Fla.1978).

Accordingly, the sentences are vacated and the cause remanded for resentencing within the statutory limitations.

Glass further contends that the split sentence imposed violates his constitutional protection against double jeopardy because no statute authorizes a split sentence by which a period of incarceration is followed by a period of probation with none of the incarceration withheld.

We note that from the face of the opinion in Poore v. State, 531 So. 2d 161 (Fla.1988), it does not clearly appear that all of the arguments made by Glass were presented to and considered by the court in Poore.

However, the opinion in Poore is so pervasive on the issue of split sentences as to leave us no latitude to vacate the sentence as not being one of the alternatives expressly authorized in section 921.187, Florida Statutes. See Carter v. State, 552 So. 2d 203 (Fla. 1st DCA) (Judges Barfield and Zehmer, specially concurring), aff'd, 553 So. 2d 169 (Fla.1989).

Accordingly, we affirm the split sentence imposed but certify to the supreme court the follow ing question as one of great public importance:

DOES A DOUBLE JEOPARDY VIOLATION RESULT PROM THE IMPOSITION OF A PROBATIONARY SPLIT SENTENCE WHEN THE LEGISLATURE HAS NOT EXPLICITLY AUTHORIZED THAT DISPOSITION IN THE SENTENCING ALTERNATIVES OF SECTION 921.187, FLORIDA STATUTES?

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

THOMPSON and BARFIELD, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (19 total)

  • Parker v. State, 570 So. 2d 1048 (Fla. 1st DCA 1990)
    …rms of 15 years followed by a 10-year period of probation. The appellant asserts that imposition of the probationary split sentence violates double jeopardy. Pursuant to the authority of Poore v. State, 531 So. 2d 161 (Fla.1988), and Glass v. State, 556 So. 2d 465 (Fla. 1st DCA 1990), we find no error in the imposition of the split sentence. We affirm as to all issues. WENTWORTH and MINER, JJ„ concur. . Evidence later revealed the robbers were from South Carolina and were staying in a motel in Pensacola.…
  • Glass v. State, 574 So. 2d 1099 (Fla. 1991)
    …PER CURIAM. We have for review Glass v. State, 556 So. 2d 465 (Fla. 1st DCA 1990), in which the First District Court of Appeal certified the following question as one of great public importance: DOES A DOUBLE JEOPARDY VIOLATION RESULT FROM THE IMPOSITION OF A PROBATIONARY SPLIT SENTENCE WHEN THE LEGISLATURE H…
  • Johnson v. State, 574 So. 2d 222 (Fla. 5th DCA 1991)
    …(Fla. 1st DCA 1990); Huff v. State, 566 So. 2d 945 (Fla. 1st DCA 1990); Schesny v. State, 564 So. 2d 640 (Fla. 1st DCA 1990); Buckley v. State, 558 So. 2d 534 (Fla. 1st DCA 1990); Betsey v. State, 558 So. 2d 202 (Fla. 1st DCA 1990); Glass v. State, 556 So. 2d 465 (Fla. 1st DCA 1990). . This concept and language was lifted from section 948.06(1) which originally related to the court’s authority to impose a sentence after violation of straight probation, a situation in which no sentence has theretofore been i…

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