CHRISTOPHER BECKNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Beckner appealed his sentencing following a nolo contendere plea to robbery and kidnapping charges. The appellate court found three sentencing errors: improper intermixing of incarceration and probation periods, probation conditions unrelated to the offenses, and a public defender's fee imposed without notice, requiring resentencing and modification of terms.
The court held that trial courts cannot impose intermittent periods of incarceration and probation in sequence with probation preceding the completion of the incarceration term. Probation conditions restricting alcohol consumption and firearm possession were unrelated to the offenses and were stricken. The public defender's fee imposed without notice and opportunity for objection violated procedural requirements.
[1] A trial court is not authorized to impose intermittent periods of incarceration and probation.
[2] Probationary terms must immediately succeed the incarcerative periods.
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Join FLexlaw to unlock all legal intelligence“A trial court is not authorized to impose intermittent periods of incarceration and probation.”
Establishes the core sentencing error that probation periods cannot be interspersed with incarceration terms
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Join FLexlaw to unlock all legal intelligenceBeckner pleaded nolo contendere to robbery and kidnapping charges. The trial court imposed concurrent sentences of five years incarceration for robber…
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FRANK, Judge.
We have for review three sentencing issues raised by Christopher Beckner who pleaded nolo contendere to charges of robbery and kidnapping. We agree with Beckner that the errors in the sentencing scheme designed by the trial court require reversal and resentencing. The trial court imposed concurrent sentences of five years incarceration for robbery, to be followed by ten years probation, and three years imprisonment for each of two kidnappings, also to be followed by ten year probationary terms. Consequently, the periods of probation stemming from the kidnapping convictions will precede the completion of the five year prison term. A trial court is not authorized to impose intermittent periods of incarceration and probation. Humphrey v. State, 579 So. 2d 335 (Fla. 2d DCA 1991). The trial court is to modify the sentences to insure that the probationary terms immediately succeed the incarcera-tive periods.
Beckner also asserts, and we agree, that certain conditions of the probation, not announced orally below, bear no reasonable relation to the offenses for which he was convicted. Hence, we strike the probationary conditions restricting Beckner’s consumption of alcohol, and prohibiting the visitation of premises upon which alcohol is served. See Daniels v. State, 583 So. 2d 423 (Fla. 2d DCA 1991). Similarly, the probation order requires Beckner to obtain the consent of his probation officer to possess a firearm. As a convicted felon, Beck-ner has, at least for the present, forfeited his right to own and possess a firearm. This condition, too, is stricken. Hinton v. State, 439 So. 2d 1008 (Fla. 2d DCA 1983).
Finally, we find merit in Beckner’s challenge to the public defender’s fee imposed by the trial court without affording Beckner the opportunity to object to the amount. See Fla.R.Crim.P. 3.720(d)(1). We strike the fee without prejudice to its assessment after notice to Beckner advising him of his right to a hearing at which he may contest the amount. Bull v. State, 548 So. 2d 1103 (Fla.1989).
We remand for further proceedings not inconsistent with this opinion.
LEHAN, A.C.J., and ALTENBERND, J., concur.
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Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995)…prohibits Hart, a convicted felon, from owning or possessing a firearm. See § 790.23, Fla.Stat. (1991). We strike the portion of condition 4 implying that Hart’s probation officer may consent to Hart’s possession of a firearm. See Beckner v. State, 604 So. 2d 842 (Fla. 2d DCA 1992). We also strike the portion of condition 4 that prohibits the possession or ownership of any weapon because it was not orally pronounced at sentencing. We strike the portion of condition 6 that prohibits the excessive use of intox…
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Davis v. State, 604 So. 2d 844 (Fla. 2d DCA 1992)…pronounced at the sentencing hearing. See Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992). Second, condition 4, which requires the defendant to obtain the consent of his probation officer to possess any firearm is stricken. See Beckner v. State, 604 So. 2d 842 (Fla. 2d DCA 1992) (a convicted felony may not lawfully own or possess a firearm). Third, we remand for the trial court to determine, and strike from defendant’s extended probationary period for his grand theft conviction, any amount of probation in…
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Mercer v. State, 604 So. 2d 843 (Fla. 2d DCA 1992)…ssory after the fact. We also affirm his sentence except for certain probation conditions which we strike. Condition 4, which requires defendant to obtain the consent of his probation officer to possess a firearm, is stricken. See Beckner v. State, 604 So. 2d 842 (Fla. 2d DCA 1992) (a convicted felon may not lawfully possess a firearm). Condition 12 is stricken because it is a special condition of probation that was not orally pronounced at the sentencing hearing. See Tillman v. State, 592 So. 2d 767 (Fla. 2…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Daniels v. State, 583 So. 2d 423 (Fla. 2d DCA 1991)
- Humphrey v. State, 579 So. 2d 335 (Fla. 2d DCA 1991)
- Hinton v. State, 439 So. 2d 1008 (Fla. 2d DCA 1983)