LANDA WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal affirmed Landa Williams's convictions on all counts but found error in the sentencing phase. The court vacated the sentence on Count VI (attempted lewd and lascivious assault) and remanded for resentencing because the combined incarceration and probation exceeded the statutory maximum, and struck an invalid restitution condition from the probation order.
The court held that each sentence for a separate offense must be individually considered and fall within the statutory maximum, and the combined periods of incarceration and probation for each offense cannot exceed the statutory maximum provided for that offense at the time of sentencing. Additionally, the probation condition requiring restitution according to a plan directed by the probation officer is invalid and must be struck.
[1] A combined period of incarceration and probation imposed at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for th…
[2] Each sentence for a separate offense must be individually considered and fall within the statutory maximum if it is to be upheld.
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Join FLexlaw to unlock all legal intelligence“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 governing rule from State v. Holmes that limits combined sentences to statutory maximums
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Join FLexlaw to unlock all legal intelligenceWilliams was convicted of an attempted lewd and lascivious assault on a child (Count VI) and received a sentence of five years imprisonment plus five …
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PER CURIAM.
We affirm appellant’s convictions on all counts. However, we find error in the sentencing phase at the trial court level. In Count VI of the information, defendant was charged with making a lewd and lascivious assault upon the child-victim. He was convicted of an attempted lewd act and sentenced to the maximum five year prison term permitted under section 775.082(3)(d), Florida Statutes (1987). However, the trial court also imposed a five year probation period on Count VI to run concurrent with the ten year probationary period imposed on Count V. Appellee argues that since this term of probation runs concurrent with the ten year probationary term in Count V, the five year probation period in no way affects the five year prison term and should, therefore, be affirmed.
Although a trial judge is authorized to sentence a defendant to a period of incarceration followed by a period of probation, section 948.01(8), Florida Statutes (1987), 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 (Fla.1978). Furthermore, in Littles v. State, 515 So. 2d 401 (Fla. 1st DCA 1987), the court held that Holmes’ holding that “the combined periods [of incarceration and probation] at the time of the original sentence cannot exceed the maximum period of incarceration provided for the offense charged,” [emphasis added] meant that each sentence for a separate offense must be individually considered and fall within the statutory maximum if it is to be upheld. Littles, 515 So. 2d at 402. Littles also declined to treat the sentencing error, which had no real effect on defendant’s time imprisoned or on probation, as harmless error. Id.
For this reason we vacate the sentence on Count VI and remand for resentencing.
Appellant contends and the state concedes that condition 13 of the probation order must be stricken, and we so conclude. That provision requires appellant to make restitution “according to a plan and schedule as directed by your Probation Officer.” This is clearly wrong. See Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986).
Therefore, we affirm the judgment except that we vacate the sentence on Count VI, strike condition 13 of the probation order (which may be revised by the trial court to avoid the error noted) and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HERSEY, C.J, and LETTS and WARNER, JJ., concur.
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Smith v. State, 589 So. 2d 387 (Fla. 1st DCA 1991)…of restitution at the subsequent hearing, the court’s attempt to delegate to the Department of Corrections the responsibility to determine an amount for regular payments to the aggrieved party is ineffectual and must be stricken. Williams v. State, 556 So. 2d 799 (Fla. 4th DCA 1990). On remand the trial court may adopt a payment schedule pursuant to section 775.089(3), Florida Statutes (1987), and if it chooses to do so, may solicit and obtain recommendations from Smith’s probation officer.2 Ballance v. Stat…
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Strickland v. State, 610 So. 2d 705 (Fla. 4th DCA 1992)…588 So. 2d 324 (Fla. 4th DCA1991). The trial court further lacked the authority to delegate this responsibility to a probation officer and to allow the probation officer to determine the amount of appellant’s monthly payments. See Williams v. State, 556 So. 2d 799 (Fla. 4th DCA1990). Based upon these errors, we must reverse the order of restitution. Since we must remand this case for a new hearing, we note the trial court may not rely upon unsworn testimony and solely upon argument of counsel as the basis fo…
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Milloway v. State, 567 So. 2d 1073 (Fla. 3d DCA 1990)…o the probation officer the determination of the mode and manner of payment of restitution, fees, and costs by the defendant is stricken, as only the trial court may direct a payment schedule for such restitution, fees, and costs. Williams v. State, 556 So. 2d 799, 800 (Fla. 4th DCA 1990). Affirmed as modified.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986)
- Detroy Littles v. State, 515 So. 2d 401 (Fla. 1st DCA 1987)