GLENDA LEE CECIL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1992-01-31
No. 91-2043
BOOTH and KAHN, JJ., concur.
596 So. 2d 461 Florida District Court of Appeal, First District (1992) Positive Treatment
Cited by 8 cases

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Synopsis

Glenda Lee Cecil appealed sentences imposed after revocation of her probation on three felony cases. The appellate court reversed and remanded for resentencing, finding the sentences exceeded statutory maximums and departed from guidelines without written justification.


Holding

The sentences were illegal and reversed because: (1) each sentence's total sanction (incarceration plus probation) exceeded the five-year statutory maximum for third-degree felonies, and (2) the incarcerative terms totaling 7 years departed from guidelines without written reasons for departure and without Cecil's agreement, violating Rule 3.701(d)(12).


Headnotes

[1] A trial court may not impose a total sanction that exceeds the term provided by general law for a felony offense.

[2] Sentences imposed after revocation of probation must remain within the sentencing guidelines unless written reasons for departure are provided.

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Key Quotes

“If a trial court imposes a split sentence (a combination of probation and incarceration), the total sanction shall not exceed the term provided by general law.”

Establishes the fundamental rule that total sanction in split sentences cannot exceed statutory maximum

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Facts & Procedural History

Cecil pled nolo contendere to two third-degree felonies in October 1990, receiving five years probation in each case (consecutive). In March 1991, she…

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Opinion of the Court
JOANOS, Chief Judge.

JOANOS, Chief Judge.

Glenda Lee Cecil has appealed the sentences imposed after revocation of her probation. We reverse, and remand for resentencing within the sentencing guidelines.

On October 9, 1990, Cecil pled nolo con-tendere in Case Nos. 89-2561 and 89 — 2883; each charged a single third-degree felony. She received five years probation in 89-2883, consecutive to a five year probationary term in 89-2561. In March 1991, an affidavit of violation of probation was filed based on Cecil’s alleged purchase of cocaine. She was charged with purchasing cocaine, also a third-degree felony, in Case No. 91-418.

Cecil admitted the probation violation, and pled nolo contendere in 91-418. The trial court revoked her probation and sentenced her as follows: Case No. 89-2561 — 3V2 years incarceration plus the remainder of her probation (approximately 4 years, 7 months), Case No. 89-2883 —3½ years incarceration concurrent with the sentence in 89-2561, plus the remainder of her probation (5 years, in that this term was set to run consecutively to that in 89-2561, and hence had not commenced at the time of the probation violation in 89-2561), and Case No. 91-418 — 3½ years consecutive to the terms in 89-2561 and 89-2883, to be followed by 11 years probation.

If a trial court imposes a split sentence (a combination of probation and incarceration), the total sanction shall not exceed the term provided by general law. Comment to Rule 3.701(d)(12), Fla. R.Crim.P. The comment also provides that “[t]he sentencing court shall impose ... sentence for each separate count, as convicted” (emphasis supplied). Here, each case charged a third-degree felony, carrying a statutory maximum term of 5 years. The court imposed incarcerative terms in each of 3½ years, leaving 1½ years available for additional probation. However, in 89-2561, the court added 4 years, 7 months probation, in 89-2883, it added 5 years, and in 91-418 it added 11 years. In each case, the total sanction exceeds the term provided by general law. The sentences are therefore illegal and must be reversed.

For the trial court’s information at resentencing, we note the provision of Rule 3.701(d)(12) that “[a] sentence must be imposed for each offense, [but] the total sentence cannot exceed the total guideline sentence unless a written reason is given” (emphasis supplied). The corresponding comment provides that “[t]he total sentence shall not exceed the guidelines sentence, unless the provisions of paragraph (11) (written reasons for departure) are complied with.”

Here, Cecil scored 96 points. The maximum of the corresponding permitted guidelines range is 3½ years; after the one-cell increase allowed for sentences imposed after revocation of probation, Rule 3.701(d)(14), the maximum of the range is 4V2 years. However, the incarcerative terms imposed by the trial court total 7 years, a departure sentence. No written reasons for the departure were given, nor did Cecil agree to be sentenced outside the guidelines as part of her plea bargain. On the contrary, guidelines sentencing was a part of her agreement. Therefore, the sentences must also be reversed for failure to provide written reasons for departure, and sentencing on remand must be within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990).

The sentences herein appealed are reversed, and the case remanded for resentencing within the guidelines.

BOOTH and KAHN, JJ., concur.


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Citator

Cited By

  • State v. Williams, 667 So. 2d 191 (Fla. 1996)
    …v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990). . First DCA: See Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992); Wolf v. State, 595 So. 2d 1078 (Fla. 1st DCA 1992); Hammond v. State, 591 So. 2d 1119 (Fla. 1st DCA 1992); but see Cecil v. State, 596 So. 2d 461, 462 (Fla. 1st DCA 1992). Second DCA: See Long v. State, 540 So. 2d 903 (Fla. 2d DCA 1989); but see State v. Esbenshade, 493 So. 2d 487 (Fla. 2d DCA 1986). Fifth DCA: See Brooks v. State, 649 So. 2d 329 (Fla. 5th DCA 1995); Smith v. State, 553 So. 2…
  • Solomon Jackson v. State, 654 So. 2d 234 (Fla. 4th DCA 1995)
    …oved, 644 So. 2d 1358 (Fla.1994). By failing to credit appellant with time served on probation from December 1992 through May 1993, the trial court imposed an illegal sentence.1 Reed v. State, 616 So. 2d 592, 593 (Fla. 4th DCA 1993); Cecil v. State, 596 So. 2d 461, 462 (Fla. 1st DCA 1992). We find no merit in state’s argument that appellant acquiesced in the imposition of an illegal sentence by entering a plea of guilty to the revocation. See Reed, 616 So. 2d at 593. Since appellant was serving an illegal se…
  • Glinder Lee Cecil v. State, 614 So. 2d 603 (Fla. 1st DCA 1993)
    …PER CURIAM. Glinder Lee Cecil has appealed from sentence imposed after remand by this court in Cecil v. State, 596 So. 2d 461 (Fla. 1st DCA 1992). We remand for correction of Cecil’s sentence as outlined below. In October 1990, Cecil pled guilty to two 3d-degree felonies (Case Nos. 89-2561 and 89-2883), and received consecutive 5-year probationary terms. An affidavit of v…

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