JOHN WAYNE MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mitchell appeals his sentence, which improperly imposed consecutive sentences interrupting periods of community control with probation. The trial court violated Florida statute by creating an intermittent sentencing plan that was not authorized by law, requiring reversal and remand for resentencing.
The sentencing plan is not authorized by statute or case law because incarcerative and community control portions of sentences must be served in a continuous, uninterrupted manner followed by non-incarcerative portions. Although such errors are readily correctable under Rule 3.800(a), Mitchell is entitled to direct appeal of the patent sentencing error, requiring reversal and remand for resentencing.
[1] A sentencing plan involving incarceration or community control followed by probation must serve the incarcerative portions of the sentences in a continuous period, immedi…
[2] Intermittent periods of incarceration and probation are not authorized when a sentencing plan involves periods of community control followed by periods of probation.
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“Where a sentencing plan involves periods of incarceration or community control followed by periods of probation, the statutes do not authorize intermittent peri[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.”
Establishes the governing legal principle that sentences must be structured continuously rather than intermittently
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Join FLexlaw to unlock all legal intelligenceMitchell received a sentence that included periods of incarceration, community control, and probation arranged in a way that created intermittent peri…
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JOANOS, Chief Judge.
This appeal is taken from a sentencing error which occurred in the context of a sentencing plan involving incarceration and probation. The error, which is apparent on the face of the record, was occasioned by imposition of consecutive sentences, which had the effect of interrupting periods of community control with a period of probation. The state agrees that the sentencing plan devised by the trial court was improper, and ordinarily would require reversal and remand for resentencing. However, the state urges that since this error was not brought to the trial court’s attention, this court should dismiss the appeal without prejudice, or relinquish jurisdiction to the trial court to allow the trial court an opportunity to correct the sentence pursuant to a motion filed under Florida Rule of Criminal Procedure 3.800(a).
Where a sentencing plan involves periods of incarceration or community control followed by periods of probation, the statutes do not authorize intermittent peri 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 authorized by statute or case law, the matter must be remanded with directions to sentence appellant in such manner that the incarcerative and community control portions of his sentence are served in a continuous uninterrupted stretch. See Lanier, 504 So. 2d at 503. The state’s argument that the court ought not entertain appeals from sentencing errors that are readily correctable pursuant to a rule 3.800(a) motion has appeal. However, as the state recognizes, appellant is entitled to a direct appeal of the sentencing error in this case. State v. Whitfield, 487 So. 2d 1045 (Fla.1986).
Although the patent sentencing error in this case requires reversal and remand for resentencing, judicial economy is not served by direct appeal of such sentencing errors readily correctable within the thirty day period for filing a notice of appeal. We agree with the state that better practice suggests such errors be brought to the trial court’s attention, thereby obviating a direct appeal in many instances.
Accordingly, the sentences are reversed and remanded for resentencing.
ERVIN and ALLEN, JJ., concur.
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Gardner v. State, 656 So. 2d 933 (Fla. 1st DCA 1995)…and incarceration, and he cites Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA), review denied, 639 So. 2d 976 (Fla.1994), which holds that it is reversible error to impose probation and incarceration concurrently. See also Mitchell v. State, 594 So. 2d 823 (Fla. 1st DCA 1992) (incareerative portions of sentences must be served in a continuous period, to be followed immediately by the noninearcerative portions). The reasons for this rule are the impossibility of complying with probation while in prison…
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Horner v. State, 617 So. 2d 311 (Fla. 1993)…ately follow the incarceration for the same offense. We find this argument unpersuasive. The statute requires that the incar-cerative portions of the sentencing be completed before the non-incarcerative portions begin. See, e.g., Mitchell v. State, 594 So. 2d 823 (Fla. 1st DCA1992); Humphrey v. State, 579 So. 2d 335 (Fla. 2d DCA1991); Sanchez v. State, 538 So. 2d 923 (Fla. 5th DCA1989). “A probationary term that falls between or interrupts an incarcerative sentence or sentences is illegal.” Hum [*313] phrey,…
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Simmons v. State, 594 So. 2d 853 (Fla. 1st DCA 1992)…county jail terms consecutive to the fifteen years of probation. An illegal sentence would result if the probationary term fell between or interrupted incarcerative sentences. Humphrey v. State, 579 So. 2d 335 (Fla. 2d DCA 1991); Mitchell v. State, 594 So. 2d 823 (Fla. 1st DCA 1992). Since the trial court’s intent is not clear, these sentences should be reversed and remanded for clarification. Next, although not raised by the appellant, the written sentence reflects that appellant was charged under section…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987)
- Sanchez v. State, 538 So. 2d 923 (Fla. 5th DCA 1989)
- Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991)
- Washington v. State, 564 So. 2d 563 (Fla. 1st DCA 1990)