KERRIE MARLENE MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the convictions are affirmed, the sentence must be remanded for correction because the trial court imposed the same split sentence for each felony charge, exceeding statutory maximums.
Appellant pleaded no contest to several charges, including violating probation, with a sentence negotiation at the midpoint of the recommended guideli…
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PER CURIAM.
We affirm appellant’s convictions for uttering a forged instrument, burglary of a dwelling, grand theft, and petit theft. However, we are required to remand this case for correction of sentence.
Appellant was convicted following her entry of no contest pleas in several separate circuit court cases, including charges of violating probation. The only negotiation was for a sentence at the midpoint of the range recommended by sentencing guidelines. The total sanction imposed, fifteen years in prison followed by five years probation, is consistent with that recommendation. The split sentence does not represent a departure, because only the inearcerative portion must conform to the guideline range. Tyner v. State, 545 So. 2d 961 (Fla. 2d DCA 1989). However, the method by which sentence was imposed results in an unlawful sentence for each of the several crimes involved. The trial court imposed the same split sentence for each felony charge, thereby exceeding the statutory maximum in each case. §§ 775.-082(3)(c), (d), Fla.Stat. (1989). Cf. Speller v. State, 545 So. 2d 968 (Fla. 2d DCA 1989).
After remand the trial court may impose any combination of concurrent or consecutive sentences that would result in the same total sanction, so long as the statutory maximum is not exceeded for any offense. Branam v. State, 554 So. 2d 512 (Fla.1989). Appellant need not be present for resentencing.
Affirmed in part, reversed in part, and remanded with instructions.
CAMPBELL, A.C.J., and LEHAN and THREADGILL, JJ., concur.
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Dyer v. State, 629 So. 2d 285 (Fla. 5th DCA 1993)…r v. State, 573 So. 2d 173, 174 (Fla. 5th DCA 1991). Once the judge enumerated a term of 15 years in the DOC, the judge elected to sentence Dyer to a term of years. Therefore, the maximum probation that can follow is 25 years. See Mitchell v. State, 573 So. 2d 446 (Fla. 2d DCA 1991). The reason probation can not exceed 25 years is that the combined sentence must fall within the statutory maximum of 40 years. See Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993); Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 19…
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Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993)…a court opts to impose a term of years for a life felony committed after October 1, 1983, it is limited to 40 years. § 775.082(3)(a), Fla.Stat. (1991). The total duration of a split sentence must fall within the statutory maximum. Mitchell v. State, 573 So. 2d 446 [*530] (Fla. 2d DCA 1991). Accordingly, Wilson’s life felony sentences are excessive by 25 years and must be corrected after remand. By virtue of a statutory anomaly, the sentences for the first degree/life felonies — 30 years prison plus 30 years…
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Hughes v. State, 667 So. 2d 910 (Fla. 4th DCA 1996)…entence. It has been held that only the incarcerative portion of a split sentence (a combination of state prison and probation) may not exceed the guidelines maximum. See Regueiro v. State, 619 So. 2d 463, 466 (Fla. 4th DCA 1993); Mitchell v. State, 573 So. 2d 446 (Fla. 2d DCA 1991). By contrast, the aggregate of a split sentence of incarceration and probation may not exceed the statutory maximum allowed by general law. See Saint v. State, 562 So. 2d 866 (Fla. 3d DCA 1990); Putt v. State, 527 So. 2d 914 (Fla.…
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
- Branam v. State, 554 So. 2d 512 (Fla. 1990)
- Tyner v. State, 545 So. 2d 961 (Fla. 2d DCA 1989)
- Speller v. State, 545 So. 2d 968 (Fla. 2d DCA 1989)