ROBERT EDWARD BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Edward Bryant was sentenced to ten years suspended upon completion of two years community control. When he violated community control, the trial court reimposed the full ten-year sentence, believing it had no discretion. The appellate court reversed, holding that the original sentence was a conditional suspended sentence (not a true split sentence), and therefore the trial court retained discretion to impose a lesser sentence upon violation.
The trial court erred. The original sentence was a conditional suspended sentence, not a true split sentence as defined in Poore v. State. Because it was not a true split sentence, the court retained discretion upon violation of community control to impose a sentence less than the originally suspended term. The case is reversed and remanded for resentencing.
[1] A sentence that suspends a total term of incarceration conditioned upon successful completion of community control, without any probation period to follow, is a condition…
[2] A court may correct an illegal sentence at any time.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A Poore true split sentence is "a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion."”
Establishes the legal definition of a true split sentence, which is the critical distinction determining the trial court's sentencing discretion.
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Join FLexlaw to unlock all legal intelligenceIn 1989, Bryant pled guilty to burglary of a structure and grand theft. He was sentenced to ten years in prison, with the entire sentence suspended, c…
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HARRIS, Judge.
In 1989, Robert Edward Bryant pled guilty to burglary of a structure and grand theft. He was sentenced as an habitual offender to concurrent terms of “ten years suspended upon successful completion of two years community control.”
In 1990, Bryant violated the terms of community control and his community control sentence was revoked. Because the trial court believed it had no alternative, it then sentenced Bryant to the remaining 10 years of the suspended sentence. Bryant argues on appeal that the court erred in believing that it had no alternative to this maximum sentence and therefore should resentence him after considering alternatives. The state urges that since the court initially imposed “a true split sentence,” upon violation, Poore1 and Franklin2 would require the court to recommit the defendant to the balance of his suspended term.
But this was not a Poore “true split sentence” or, for that matter, any sentencing alternative recognized by Poore. A Poore true split sentence is “a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion.” Poore at 164. For example, ten years in prison but the defendant to be released from incarceration after three years with the remaining seven years being served on probation would be a true split sentence. In the present case, the court announced a ten year prison term but suspended it all (with no probation) subject to the condition that defendant “successfully complete” two years community control. In other words this was a conditional suspended sentence. Since there was no probation to follow, the successful completion of the community control would have satisfied the entire sentence.
In addition to being a conditional suspended sentence it was also an alternative sentence: either successfully complete two years community control or serve ten years in prison. Neither party has urged that this sentence is illegal but if Poore is read to limit sentencing alternatives to those specified therein (as we read it), this sentence is unauthorized and therefore illegal. The court can correct an illegal sentence at any time. Rule 3.800(a), Florida Rules of Criminal Procedure. Even if this sentence were construed to be an acceptable hybrid of the designated alternatives, still the court would have the authority to sentence for less than the initially specified ten years. Neither double jeopardy3 nor Pearce4 due process concerns would prevent a resentence or recommitment for a lesser period.
As the supreme court stated in Poore at 164:
However, if [a true split sentence] is used as the original sentence, the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence. [Emphasis added.]
REVERSED and REMANDED for re-sentencing.
COBB and GRIFFIN, JJ., concur. . Poore v. State, 531 So. 2d 161, 164 (Fla.1988).
. Franklin v. State, 526 So. 2d 159, 162-163 (Fla. 5th DCA 1988), aff’d, 545 So. 2d 851 (Fla.1989).
. Double jeopardy in sentencing does not attach until the prisoner starts "serving” the sentence. The general rule regarding the right against double jeopardy is that once a defendant has begun serving a sentence, double jeopardy protections attach and the sentence cannot thereafter be increased. Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). In the case before us, Bryant never started serving the ten year sentence, nor was it intended that, if he successfully completed community control, he would ever serve it.
. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled, in part, on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992)…ion. Cf. Ferguson v. State, 594 So. 2d 864 (Fla. 5th DCA1992) (sentence of 364 days in county jail, to be suspended upon successful completion of 15 years’ probation, is illegal because not authorized by the supreme court in Poore)) Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA1992) (sentence of ten years’ incarceration, suspended upon successful completion of two years’ community control, is illegal because it was not one of the sentencing alternatives authorized in Poore). Existing case law recognizes that…1 / 2
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Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995)…imposed pursuant to a plea agreement was a “true split” sentence, as described in Poore v. State, 531 So. 2d 161 (Fla.1988). However, this sentence appears to us to be an illegal, conditional suspended and alternative sentence. See Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992). Cf. Silva v. State, 602 So. 2d 694 [*387] (Fla. 2d DCA 1992); Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA 1993). Although the second sentence may have been illegal, Warrington agreed to this second sentence, enjoyed the benef…
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State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992)…of which is suspended, followed by a period of probation preceded by a period of confinement imposed as a special condition, (4) a Villery sentence consisting of a period of probation, and (5) straight probation. This court held in Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992), a violation of probation case, that where a defendant was originally sentenced as an habitual offender to ten years incarceration suspended upon the successful completion of two years community control, such a sentence was not o…
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
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Ex parte Lange, 18 Wall. 163 (U.S. 1873)
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Alabama v. Smith, 490 U.S. 794 (U.S. 1989)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)