BRIAN D. WEINER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot complain of a downward departure from sentencing guidelines, and the length of probation is not limited by guidelines but by statutory maximums.
[1] A defendant cannot complain of a downward departure from sentencing guidelines; such a complaint is valid only for the state.
[2] A defendant's awareness of the probable imposition of probation, as indicated in a sentencing transcript, can satisfy the requirement of notice even if the written plea a…
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Join FLexlaw to unlock all legal intelligenceBrian Weiner pleaded no contest to sexual battery and aggravated battery. He received a sentence of 5 years incarceration followed by 20 years of prob…
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PETERSON, Judge.
Brian Weiner appeals the imposition of two consecutive 10-year terms of probation following 5 years of incarceration and the imposition of a special condition during pro bation that he abstain from the consumption of alcoholic beverages. We affirm.
Weiner entered a plea of no contest to charges of sexual battery [§ 794.011(5), Fla.Stat. (1987)] and aggravated battery [§ 784.045(l)(a), Fla.Stat. (1987)] pursuant to a plea bargain in which the state nol-prossed four counts and reduced the sexual battery from a life felony to a second-degree felony. The negotiated sentence was 5 years in the Department of Corrections, an agreed upon departure from the guideline sentence of 2>lk to 4V2 years. Prior to the acceptance of his plea, Weiner acknowledged to the court that he understood, if the plea was accepted, probation following incarceration probably would be imposed. For the sexual battery offense, the court imposed a true split sentence of 15 years in the Department of Corrections, suspended the last 10 years, and placed Weiner on probation for the suspended period. See Poore v. State, 531 So. 2d 161 (Fla.1988).
A consecutive 10-year period of probation was imposed for the aggravated battery offense, for a total of 5 years in the Department of Corrections, followed by 20 years of probation.
Weiner contends that he should have been sentenced only to concurrent periods of incarceration on both counts since the 10-year period of probation on the aggravated battery offense is a downward departure and probation was not part of the negotiated sentence. The complaint by a defendant of a downward departure from the guidelines is a unique and frivolous argument; it is a valid complaint to be made by the state, not a defendant. See Petrillo v. State, 554 So. 2d 1227 (Fla. 2d DCA 1990).
Whether the imposition of probation was part of the written negotiated plea is impossible to determine on appeal since the document is not part of the record, but the transcript of the sentencing proceedings clearly indicates Weiner was aware that probation probably would be imposed if he changed his plea from not guilty to no contest.
The court is under a duty to impose a sentence for each offense notwithstanding that the offenses are combined in one scoresheet. § 775.021(4), Fla.Stat. (1987). However, the total sentence cannot exceed the total guidelines sentence unless a written reason is given. Fla.R.Crim.P. 3.701(d)(12).
The reference to “sentence” in the rule means incarceration, not periods of probation. The recommended length of a prison sentence under the guidelines has nothing to do with the length of probation given as an alternative to prison. Petrillo v. State, 554 So. 2d 1227. The period of probation, when combined with the period of incarceration, is limited only by the statutory maximum for the crime. Loomis v. State, 531 So. 2d 423 (Fla. 5th DCA 1988); O’Brien v. State, 478 So. 2d 497 (Fla. 5th DCA 1985); Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985).
The statutory maximum for a second-degree felony is 15 years. § 775.082(3)(c), Fla.Stat. (1987).
Since Weiner chose to commit two second-degree felonies, the statutory maximum is 30 years because the court has discretion to impose consecutive sentences for the two offenses. § 775.021(4), Fla.Stat. The only limitation prescribed by the guidelines themselves is upon the incarcerative portion of the sentence, and this was intentionally waived by Weiner. We would point out to the state that Weiner has offered to be resentenced for a period of 5V2 years in the Department of Corrections if all probation is deleted. Query: If Weiner did violate the terms of his probation after serving the 5 years in the Department of Corrections, would not the maximum period be 5V2 years of incarceration with 5 years’ credit for time served? This would seem to be the result of a probation violation bump to the next cell and the decision in Niehenke v. State, 561 So. 2d 1218 (Fla. 5th DCA, 1990).
In any event, the trial court, not the defendant, has the option of imposing probation or incarceration. Woods v. State, 542 So. 2d 443, 444 (Fla. 5th DCA 1989); Petrillo v. State, 554 So. 2d 1227 (Fla. 2d DCA 1990).
The judgment and sentence are affirmed but with a correction to reflect that Weiner pled no contest to the second-degree felony of sexual battery under section 794.011(5), not to a life felony under section 794.011(3).
AFFIRMED.
COWART and GOSHORN, JJ., concur.
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Toomajan v. State, 785 So. 2d 1275 (Fla. 5th DCA 2001)…relief on Heggs. Nonetheless, the trial court correctly denied relief on this ground. Regardless of when his offense was committed, appellant cannot complain that his original community control sentence was a downward departure. See Weiner v. State, 562 So. 2d 392 (Fla. 5th DCA 1990) (defendant’s complaint that his sentence was a downward departure is frivolous). See also Stroble v. State, 689 So. 2d 1089 (Fla. 5th DCA), rev. denied, 697 So. 2d 512 (Fla.1997) (defendant who accepted benefits of community cont…
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Hope v. State, 682 So. 2d 1173 (Fla. 4th DCA 1996)…offenses separate from the offense for which the prison term was imposed, which do not exceed the statutory maximum. See Stoudmire v. State, 636 So. 2d 118 (Fla. 1st DCA 1994); Petrillo v. State, 554 So. 2d 1227 (Fla. 2d DCA 1990); Weiner v. State, 562 So. 2d 392 (Fla. 5th DCA 1990). As his third point on appeal, appellant points to an apparent conflict between the written order of probation and the restitution order. Specifically, while the restitution order indicates that restitution is not applicable, th…
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Maynard v. State, 763 So. 2d 480 (Fla. 4th DCA 2000)…So. 2d 916 (Fla. 5th DCA 1997). The trial court did not impose a probationary split sentence1 for any one offense. Rather, it imposed a sentence for each offense notwithstanding that the offenses are combined in one scoresheet. See Weiner v. State, 562 So. 2d 392, 393 (Fla. 5th DCA 1990)(“The court is under a duty to impose a sentence for each offense notwithstanding that the offenses are combined in one scoresheet.”). The period of probation is limited only by the statutory maximum for the crime. Id. Here,…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- O'Brien v. State, 478 So. 2d 497 (Fla. 5th DCA 1985)
- Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989)
- Niehenke v. State, 561 So. 2d 1218 (Fla. 5th DCA 1990)
- Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985)
- Petrillo v. State, 554 So. 2d 1227 (Fla. 2d DCA 1990)
- Loomis v. State, 531 So. 2d 423 (Fla. 5th DCA 1988)