KENNETH SKEENS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that probation and community control can be stacked in a single sentence, and that convictions for carrying a concealed firearm and possession of a firearm by a convicted felon arising from the same act do not violate double jeopardy. The Court approved the district court's decision and resolved a conflict among appellate courts.
The Court held affirmatively on both issues: probation and community control may be stacked in a single sentence, and the two firearm offenses are separate crimes that can properly arise from a single act without violating double jeopardy.
[1] Probation and community control may be stacked in a single sentence, provided the total sanction does not exceed the term provided by general law.
[2] The amendment to Florida Rule of Criminal Procedure 3.701(d)(13) clarifying that community control may be followed by probation was a clarification of existing law, not a…
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Join FLexlaw to unlock all legal intelligence“It is appropriate to impose a sentence of community control to be followed by a term of probation. The total sanction (community control and probation) shall not exceed the term provided by general law.”
This quote from the 1985 amendment to Florida Rule of Criminal Procedure 3.701(d)(13) establishes the Court's primary basis for holding that stacking is permissible.
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Join FLexlaw to unlock all legal intelligenceKenneth Skeens pled guilty to being a felon in possession of a firearm and carrying a concealed firearm, both offenses arising from the same act. He w…
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PER CURIAM.
We have for review Skeens v. State, 542 So. 2d 436 (Fla. 2d DCA 1989), in which the district court recognized conflict. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve the decision of the district court below.
This case presents the following issues: whether probation and community control can be stacked in a single sentence, and whether convictions for carrying a concealed firearm and possession of a firearm by a convicted felon can properly arise out of the same act. We respond to both questions in the affirmative.
Skeens pled guilty to being a felon in possession of a firearm, in violation of section 790.23, Florida Statutes (1983), and carrying a concealed firearm, in violation of section 790.01(2), Florida Statutes (1983), both offenses arising from the same act. He was sentenced to two years’ community control to be followed by ten years’ probation on the first charge, and time served on the second. The district court affirmed, specifically holding that the sentences did not constitute double jeopardy. In deciding that the stacking of probation on community control was permissible, it recognized conflict with Chessler v. State, 467 So. 2d 1102 (Fla. 4th DCA 1985); Mitchell v. State, 463 So. 2d 416 (Fla. 1st DCA), dismissed, 469 So. 2d 750 (1985); and Williams v. State, 464 So. 2d 1218 (Fla. 1st DCA 1984).
Skeens argues that stacking is improper because the clear legislative intent underlying chapters 921 and 948 is that community control and probation are alternative sentencing dispositions that cannot be imposed in tandem. We disagree. Probation, community control, and incarceration are alternative options that the legislature has made available to meet the broad spectrum of sentencing needs. Each involves differ ent procedures and restrictions. We see no reason why probation and community control cannot be stacked to meet individualized sentencing circumstances. In 1985, this Court amended the committee note following Florida Rule of Criminal Procedure 3.701(d)(13) to provide in part:
It is appropriate to impose a sentence of community control to be followed by a term of probation. The total sanction (community control and probation) shall not exceed the term provided by general law.
The Florida Bar Re: Rules of Criminal Procedure, 482 So. 2d 311, 317 (Fla.1985) (emphasis omitted). This change was adopted by the legislature the following year. Ch. 86-273, § 2, Laws of Fla. The amendment constitutes a clarification of existing law, not a change in substantive law, and ex post facto considerations are inapplicable.
The act underlying' Skeens’s offenses took place prior to July 1, 1988, and the double jeopardy issue, therefore, is controlled by Carawan v. State, 515 So. 2d 161 (Fla.1987). Under the Carawan analysis, carrying a concealed firearm and possession of a firearm by a convicted felon are separate offenses and can properly arise from a single act. A felon can be punished under section 790.23, Florida Statutes (1983), for being in simple possession of a firearm. Carrying a concealed firearm, on the other hand, constitutes a distinctly different offense, warranting the separate punishment authorized by section 790.01(2), Florida Statutes (1983). The offenses contain different elements — one pertains only to felons, the other only to concealed weapons — and address different evils — one pertains to a class of individuals at increased risk of committing crime, the other pertains to a manner of possession conducive to the commission of crime.
Accordingly, we approve the decision of the district court below and disapprove those of the courts in Chessler, Mitchell, and Williams, to the extent that they conflict with this ruling.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, shaw, barkett, GRIMES and KOGAN, JJ., concur.
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Cited By (12 total)
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Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)…PER CURIAM. We affirm Appellant’s convictions for carrying a concealed firearm and for possession of a firearm by a convicted felon. See Skeens v. State, 556 So. 2d 1113 (Fla.1990); Washington v. State, 661 So. 2d 1294 (Fla. 4th DCA 1995), cause dismissed, 669 So. 2d 252 (Fla.1996); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306 (1932). We have considered State v. Stearns, 645 So. 2d…
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Fraser v. State, 602 So. 2d 1299 (Fla. 1992)…ation. State v. Mestas, 507 So. 2d 587, 588 (Fla.1987) (“Community control, which is a harsh and more severe alternative to ordinary probation, is a departure sentence when the guidelines call for any ‘nonstate prison sanction.’ ”); Skeens v. State, 556 So. 2d 1113 (Fla.1990) (holding that stacking sentences of community control and probation is permissible). Consequently, cases finding that probation or parole should not be credited toward jail sentences are inapplicable to the question presented. See, e.g.,…
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State v. Williams, 667 So. 2d 191 (Fla. 1996)…parture. It does not exceed the two-year statutory maximum. As to Williams' "total sanction” (community control and probation), it is valid for two reasons. First, probation and community control can be stacked in a single sentence. Skeens v. State, 556 So. 2d 1113, 1113-14 (Fla.1990). Second, the sentences do not “exceed the term provided by general law.” See Fla.R.Crim.P. 3.701(d)(13) (1988 Sentencing Guidelines Commission Notes); Phillips v. State, 651 So. 2d 203, 205 (Fla. 5th DCA 1995) (both community con…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- The Fla. Bar re: Rules of Crim. Procedure (sentencing Guidelines, 482 So. 2d 311 (Fla. 1985)
- Chessler v. State, 467 So. 2d 1102 (Fla. 4th DCA 1985)
- State v. Schaffer, 464 So. 2d 1218 (Fla. 4th DCA 1984)
- Williams v. State, 464 So. 2d 1218 (Fla. 1st DCA 1984)
- Skeens v. State, 542 So. 2d 436 (Fla. 2d DCA 1989)
- Mitchell v. State, 463 So. 2d 416 (Fla. 1st DCA 1985)