SHIRLEY GAYLE HORNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1992-04-24
Nos. 91-01802, 91-01813 and 91-01818
SCHOONOVER, C.J., and CAMPBELL, J., concur.
597 So. 2d 920 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Shirley Gayle Horner appeals sentences imposed upon revocation of her probation in three theft cases. The court affirmed the 3½-year incarceration and 22-year probation term but struck the condition requiring her to spend up to 22 years at the Bradenton Probation and Restitution Center, finding such extended placement exceeded statutory limits.


Holding

The court affirmed the concurrent incarceration and probationary terms, finding no unauthorized gap when probation commences immediately upon release. However, the court struck the restitution center condition from cases one and three because statutory law limits such placements to 364 days maximum at Department of Corrections facilities. The condition was upheld only for the first 1-year probationary term.


Headnotes

[1] A period of probation must commence immediately upon release from incarceration when a split sentence is imposed, precluding a period of complete freedom between incarcer…

[2] Consecutive terms of probation are permissible when incarceration is imposed concurrently in multiple cases.

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

Key Quotes

“We interpret this provision to preclude a period of complete freedom between incarceration and probation.”

Establishes that probation must commence immediately upon release, leaving no gap of freedom between incarceration and probation terms.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Horner was convicted of multiple thefts, including a worthless check for $167 in 1983 and thefts of $300 and seven worthless checks totaling $3,871 in…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

The defendant, Shirley Gayle Horner, appeals the sentences she received on May 17, 1991, on revocation of her probation in three cases. In total, she received 3½ years’ incarceration and 22 years’ probation. As a condition of probation, she was required to spend up to 22 years at the Bradenton Probation and Restitution Center. We affirm the period of incarceration and the term of probation, but strike the condition of probation which requires Ms. Horner to spend an extended term at the restitution center. The three cases on appeal involve numerous thefts, all third-degree felonies. Case one concerns a worthless check for $167 given to a grocery store in 1983.1 Case two concerns a theft of $300 in February 1988.2 Case three concerns seven worthless checks, totalling $3,871, also written in February 1988.3 In November 1988, Ms. Horner received concurrent split sentences of incarceration followed by probation in these cases.

Apparently, Ms. Horner subsequently wrote additional worthless checks. As a result, the state sought a revocation of her probation. Ms. Horner pleaded no contest to the alleged violations. At the revocation hearing in May 1991, the trial court sentenced Ms. Horner to concurrent terms of 3½ years’ imprisonment in cases one and two. The prison sentences were to be followed by a 1-year probationary term for case two and a consecutive 1-year term of probation for case one. These probationary periods were to be followed by four consecutive 5-year terms of probation in case three.4 As a condition of each term of probation, the defendant was sentenced to report to the Bradenton Probation and Restitution Center within 24 hours of release from prison. It is clear that the trial court intended for Ms. Horner to spend up to 22 years at the restitution center, but it also expected she would petition for release from this condition after a much shorter period.

The defendant raises three issues concerning this sentencing structure. First, she challenges the year of probation in case one because that split sentence was interrupted by the year of probation in case two. She maintains that this creates an unauthorized gap between prison time and probation. Her argument is supported by Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA 1987), and Washington v. State, 564 So. 2d 563 (Fla. 1st DCA 1990).

We recognize that section 948.01(8), Florida Statutes (1989), requires a period of probation to “commence immediately upon release of the defendant from incarceration” whenever a “split sentence” is imposed. We interpret this provision to preclude a period of complete freedom between incarceration and probation. Cf. Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980) (90-day jail sentence could not be served in weekend increments of “intermittent incarceration”). Under the guidelines, a trial judge is frequently obligated to sentence a defendant on several counts or several separate informations at one sentencing hearing. See Clark v. State, 572 So. 2d 1387 (Fla.1991). We see no logical reason why the legislature would authorize these consecutive terms of probation if the incarceration were imposed in only one of the cases, but would prohibit these consecutive terms if the identical incarceration were imposed concurrently in two cases.5 Since there is no gap between the incarceration and the probation imposed at this sentencing hearing, we affirm this aspect of the sentencing method and announce conflict with Lanier and Washington.6

Second, the defendant argues that her stay at the Bradenton Restitution and Probation Center cannot last 22 years. She is correct. Bradenton Restitution and Probation Center is a Department of Correc tions center. Placement in such a restitution center may not exceed 364 days. § 921.187, Fla.Stat. (1989).7 Thus, this condition of probation is appropriate for the first 1-year term of probation. This condition of probation, however, is stricken from the sentences imposed in case one and case three.

Finally, the defendant argues that the Bradenton Restitution and Probation Center is a variety of imprisonment which can only be imposed within the guidelines to the extent that the guidelines authorize imprisonment or incarceration. Our record contains no evidence concerning the living conditions of participants in that program.

We understand that “probation and restitution centers” are community-based facilities where probationers “who have violated their terms or conditions may be required to reside while working, receiving treatment, or attending school.” § 944.-026(l)(c), Fla.Stat. (1991). The enunciated purpose of these facilities “is to provide the court with an alternative to committing offenders to more secure state correctional institutions and to assist in the supervision of probationers.” § 944.026(l)(c), Fla.Stat. (1991). The legislature intends that programs be imposed for a limited term “as a condition of probation or community control.” § 921.187, Fla.Stat. (1989). Cf. Tal-Mason v. State, 515 So. 2d 738 (Fla.1987) (jail credit not generally available for probationary rehabilitation). On the face of this record, we see no reason to limit the use of such facilities to cases in which the guidelines would authorize a comparable period of incarceration.

Affirmed except to the extent that certain conditions of probation are stricken.

SCHOONOVER, C.J., and CAMPBELL, J., concur. . No. 91-01818, on appeal from State v. Horner, No. 83-258-CF-A-DCC, Circuit Court of the 20th Judicial Circuit, Charlotte County, Florida. Our record on appeal is somewhat limited. We have no information about the proceedings in this case between 1983 and 1988. We assume that the defendant elected sentencing under the guidelines for this offense in order to avoid a more severe sentence.

. No. 91-01813, on appeal from State v. Horner, No. 88-385-CF-A-DCC, Circuit Court of the 20th Judicial Circuit, Charlotte County, Florida.

. No. 91-01802, on appeal from State v. Horner, No. 88-386-CF-A-DCC, Circuit Court of the 20th Judicial Circuit, Charlotte County, Florida.

. She also received three additional terms of concurrent probation on the remaining counts in case three. Those terms do not affect our analysis.

. Indeed, if the trial court had not imposed a split sentence including a concurrent 3!/2-year term of incarceration in case one, it could have sentenced the defendant to yet another 5-year term of probation.

. See also Latham v. State, 596 So. 2d 140 (Fla. 1st DCA 1992).

. Placement in a county residential probation facility may be imposed for a period up to 3 years. § 921.187(l)(d), Fla.Stat. (1989). From our record, it does not appear that the Braden-ton Restitution and Probation Center is classified as a county facility.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Jackson v. State, 615 So. 2d 850 (Fla. 2d DCA 1993)
    …both counsel, and the appellant himself, all understood that the court intended to impose the sen-fences in accord with the state’s interpretation in this appeal. This sentencing structure comports with section 948.01(8). See also, Horner v. State, 597 So. 2d 920 (Fla. 2d DCA 1992) (permissible to have concurrent prison terms on two counts followed by probation on second count followed by probation on first count),2 Cox. Because the trial court’s oral pronouncement of sentence did not make plain this intenti…
  • Horner v. State, 617 So. 2d 311 (Fla. 1993)
    …BARKETT, Chief Justice. We review Horner v. State, 597 So. 2d 920 (Fla. 2d DCA1992), based on conflict with Lanier v. State, 504 So. 2d 501 (Fla. 1st DCA1987), and Washington v. [*312] State, 564 So. 2d 563 (Fla. 1st DCA1990).1 The issue is whether section 948.01(8), Florida Statutes (1989), which precludes a time…
  • Solis v. State, 622 So. 2d 584 (Fla. 2d DCA 1993)
    …that incarceration as a condition of probation or community control may not exceed 364 days. Both the county jail and probation and restitution [*585] centers are included in the definition of incarceration. We would also note under Horner v. State, 597 So. 2d 920 (Fla. 2d DCA 1992), approved, Horner v. State, 617 So. 2d 311 (Fla.1993), that placement in a probation and restitution center as a condition of probation or community control cannot exceed 364 days. The trial court also erred when it sentenced appe…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw