STEVEN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steven Smith appealed his sentences in two cases, arguing that split sentences (incarceration followed by probation) that combined exceeded statutory maximums violated Florida law. The court agreed, finding that while some sentences were proper, the combined incarceration and probation periods for certain grand theft and credit card fraud convictions exceeded legal limits.
The court held that when a split sentence is imposed, the combined sanction of incarceration and probation cannot exceed the maximum period of incarceration provided by law. The sentences on the grand theft counts in case 89-344 and the grand theft and credit card fraud counts in case 89-346 violated this rule because the probationary periods, when added to incarceration, exceeded statutory maximums.
[1] When a defendant is sentenced to a split sentence of incarceration followed by probation, the combined sanction cannot exceed the statutory maximum period of incarceratio…
[2] A probationary period imposed as part of a split sentence may not extend beyond the statutory maximum incarceration period for the underlying felony.
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Join FLexlaw to unlock all legal intelligence“the law is clear that when a defendant is sentenced to a split sentence consisting of incarceration and probation, as provided by statute, the combined sanction cannot exceed the maximum period of incarceration provided by law”
Establishes the controlling legal principle that split sentences must not exceed statutory maximums when combined
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Join FLexlaw to unlock all legal intelligenceIn case 89-344, Smith pled guilty to two burglaries and two grand thefts occurring on September 16, 1988, and was sentenced to 4.5 years prison plus 5…
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SCHEB, Acting Chief Judge.
The defendant, Steven Smith, contends the trial court erred in imposing prison sentences followed by probation which, when combined, exceed statutory máxi-mums. We agree.
This appeal involves two cases. In circuit court case number 89-344, the defendant pled guilty to two counts of burglary of a dwelling and two counts of grand theft, which occurred on September 16, 1988. He was sentenced to four and one-half years in prison followed by five years’ probation on each count, concurrent. The burglary counts are second degree felonies, section 810.02(3), Florida Statutes (1987), and the sentence imposed on these burglary counts falls within the statutory maximum incarceration period of fifteen years. Arena v. State, 382 So. 2d 407 (Fla. 4th DCA 1980).
However, the two grand theft counts are third degree felonies, section 812.014, Florida Statutes (1987), as amended by Supp. (1988), which have a maximum penalty of five years’ imprisonment. Atkinson v. State, 457 So. 2d 1063 (Fla. 2d DCA 1984).
The law is clear that when a defendant is sentenced to a split sentence consisting of incarceration and probation, as provided by statute, the combined sanction cannot exceed the maximum period of incarceration provided by law. State v. Holmes, 360 So. 2d 380, 383 (Fla.1978). See Fla.R.Crim.P. 3.701, comm. note (d)(12)(1987)1 Thus, the probationary periods of the additional four and one-half years on each grand theft count exceed the statutory maximum incarceration periods for these felonies. § 775.082(3)(d), Fla. Stat. (1987). Glass v. State, 556 So. 2d 465 (Fla. 1st DCA 1990), approved 574 So. 2d 1099 (Fla.1991).
In circuit court case number 89-346, the defendant pled guilty to burglary, grand theft, and fraudulent use of a credit card, occurring on February 2 and 4, 1989. The court properly found the defendant to be a habitual felon. It then sentenced him to ten years imprisonment followed by five years probation on each count. The statutory maximum sentence for a burglary count, a second degree felony, is 30 years when a defendant is habitualized. § 775.-084(4)(a)2., Fla.Stat. (1987).
Accordingly, the 10/5 split sentence was proper as to the burglary conviction. Denton v. State, 382 So. 2d 1381 (Fla. 2d DCA 1980).
However, we agree with the defendant that the 10/5 split sentence on the grand theft and fraudulent use of a credit card counts, both third degree felonies, exceed the maximum ten years’ state prison term for a habitualized defendant permitted under section 775.-084(4)(a)3, Florida Statutes (1989). Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987), disapproved on other grounds, Parker v. State, 546 So. 2d 727 (Fla.1989).
We affirm all of the defendant’s convictions. We vacate his sentences for grand theft in circuit court case number 86-344 and his sentences for grand theft and the fraudulent use of a credit card in circuit court case number 86-346. We affirm the remaining sentences. We direct the trial court to resentence the defendant consistent with this opinion.
FRANK and THREADGILL, JJ., concur. . "If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.”
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Regueiro v. State, 619 So. 2d 463 (Fla. 4th DCA 1993)…ds to which a court may sentence a defendant, with respect to the length of both the incarcerative term and the total term, which is the probationary term and the incarcerative term combined. See Pla. R.Crim.P. 3.701(d)(12); see also Smith v. State, 584 So. 2d 154 (Fla.2d DCA 1991). In relevant part, the Sentencing Guidelines Commission Notes for the 1988 amendments to Florida Rule of Criminal Procedure 3.701(d)(12) provide the following: If a split sentence is imposed (i.e., a combination of state prison a…
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Ucal Howe v. State, 596 So. 2d 1227 (Fla. 2d DCA 1992)…. See Dion v. State, 409 So. 2d 1216 (Fla. 3d DCA 1982). See also Miller v. State, 460 So. 2d 373 (Fla.1984). The sentence consisting of incarceration and probation cannot exceed the maximum period of incarceration provided by law. Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991). Thus Howe’s forty-two-year split sentence is illegal. Howe did not waive this error by failing to object below. See Forshee v. State, 579 So. 2d 388 (Fla. 2d DCA 1991). Reversed and remanded for the trial court to impose a sent…
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Walker v. State, 604 So. 2d 913 (Fla. 1st DCA 1992)…al of the incarcerative and probationary portions of the sentence may not exceed the maximum term provided by general law. Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992); Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991). Second, a period of probation “shall commence immediately upon the release of the defendant from incarceration.” § 948.-01(8), Fla.Stat. (1987); Horner v. State, 597 So. 2d 920, 921 (Fla. 2d DCA 1992). In other words, “(a] probat…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)
- Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987)
- Glass v. State, 574 So. 2d 1099 (Fla. 1991)
- Glass v. State, 556 So. 2d 465 (Fla. 1st DCA 1990)
- Leo Lee Arena v. State, 382 So. 2d 407 (Fla. 4th DCA 1980)
- Denton v. State, 382 So. 2d 1381 (Fla. 2d DCA 1980)
- Atkinson v. State, 457 So. 2d 1063 (Fla. 2d DCA 1984)