CLAUDIA WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1990-07-16
No. 89-2331
BOOTH and BARFIELD, JJ., concur.
564 So. 2d 563 Florida District Court of Appeal, First District (1990) Caution
Cited by 12 cases

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Synopsis

Claudia Washington appeals her sentence for battery on a law enforcement officer, grand theft, and aggravated assault after pleading nolo contendere. The appellate court found no error in the conviction but identified an unlawful sentencing scheme and certified a question of great public importance to the Florida Supreme Court regarding consecutive probationary periods.


Holding

The appellate court reversed the consecutive probationary periods and remanded for imposition of concurrent probation periods. The court held that the sentencing scheme was not authorized by statute because probation must commence immediately upon release from incarceration under Florida law.


Headnotes

[1] A sentencing scheme that creates an unauthorized gap between incarceration and probation is not authorized by statute.

[2] Probationary periods shall commence immediately upon release from incarceration, whether by parole or gain-time allowances.

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Key Quotes

“The period of probation ... shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances.”

Establishes the statutory requirement that probation must commence immediately upon release, making the trial court's consecutive probationary periods unlawful.

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Facts & Procedural History

Washington pleaded nolo contendere to three third-degree felonies: grand theft of property valued at $295, aggravated assault with a deadly weapon wit…

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Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

Claudia Washington appeals from the judgment and sentence imposed after pleading nolo contendere to reduced charges of battery on a law enforcement officer, grand theft, and aggravated assault. Appellate counsel has advised that after a review of the record and discussions with trial counsel as to the designated judicial act for review, she found no appealable error nor could she make a reasonable argument with respect to the designated judicial act. Therefore, in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel filed a motion requesting this court to issue an order permitting appellant to file her own brief, which order was issued. Appellant has not filed a brief.

Our review of the record indicates that the sentencing scheme devised by the trial court in this case is not authorized by statute. The convicted offenses in this case were all third degree felonies.1 The maximum penalty for a third degree felony is five years incarceration. See § 775.082(3)(d), Fla.Stat. (1985). The Category 6 guidelines scoresheet prepared in this case reflects a total of 85 points, with a recommended sentencing range of 372 to 472 years, and a permitted range of 272 to 572 years. The trial court imposed concurrent 472 year sentences, to be followed by two probationary periods of six months each, the probationary periods to run consecutively to each other. The practical effect of the sentencing disposition in this case has been to create an unauthorized gap between prison time and probation in regard to one of the sentences. See § 948.01(8), Fla.Stat. (1987). Our conclusion is based primarily upon the language of the last sentence in subsection (8) which reads: “The period of probation ... shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances.” (emphasis supplied).

Because the sentencing disposition employed in this case suggests a problem not contemplated by the sentencing statutes, and because of the closeness of the question, we certify the following to the Florida Supreme Court as a question of great public importance:

WHEN IMPOSING A SENTENCING SCHEME WHICH INVOLVES INCARCERATION AND PROBATION, MAY THE TRIAL COURT IMPOSE CONSECUTIVE PERIODS OF PROBATION WHEN THE RESULTING PERIOD OF COURT CONTROL WILL CREATE A TIME GAP BETWEEN RELEASE FROM INCARCERATION AND COMMENCEMENT OF PROBATION IN REGARD TO ONE SENTENCE.

Accordingly, we reverse the consecutive probationary periods imposed in this case, and remand for imposition of concurrent periods of probation. In all other respects, the judgment and sentences are affirmed.

BOOTH and BARFIELD, JJ., concur. . In Case No. 86-5011, appellant pled nolo con-tendere to a violation of § 812.014(2)(b), Fla. Stat. (1985), grand theft of property valued at $295, a third degree felony; and to § 784.021(l)(a), Fla.Stat. (1985), aggravated assault with a deadly weapon without intent to kill, a third degree felony. In Case No. 89-3414, appellant pled nolo contendere to a violation of § 784.07(2)(b), Fla.Stat. (1987), battery on a law enforcement officer, a third degree felony.


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Citator

Cited By

  • Horner v. State, 617 So. 2d 311 (Fla. 1993)
    …BARKETT, Chief Justice. We review Horner v. State, 597 So. 2d 920 (Fla. 2d DCA1992), based on conflict with Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA1987), and Washington v. [*312] State, 564 So. 2d 563 (Fla. 1st DCA1990).1 The issue is whether section 948.01(8), Florida Statutes (1989), which precludes a time gap in a probationary split sentence,2 prohibits a separation between incarceration and probation as to each case of a multiple-case sentenc…
  • Horner v. State, 597 So. 2d 920 (Fla. 2d DCA 1992)
    …e was interrupted by the year of probation in case two. She maintains that this creates an unauthorized gap between prison time and probation. Her argument is supported by Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987), and Washington v. State, 564 So. 2d 563 (Fla. 1st DCA 1990). We recognize that section 948.01(8), Florida Statutes (1989), requires a period of probation to “commence immediately upon release of the defendant from incarceration” whenever a “split sentence” is imposed. We interpret this p…
  • Mitchell v. State, 594 So. 2d 823 (Fla. 1st DCA 1992)
    …intermittent peri [*824] ods of incarceration and probation. Rather, the incarcerative portions of the sentences must be served in a continuous period, to be followed immediately by the non-incarcerative portion of the sentence. Washington v. State, 564 So. 2d 563 (Fla. 1st DCA 1990); Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987); Sanchez v. State, 538 So. 2d 923 (Fla. 5th DCA 1989). See also Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991). Since the sentencing plan imposed in this case is not aut…

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