HENRY WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Walker appealed his sentence imposed after the trial court granted his motion for post-conviction relief challenging the legality of his sentence. The court held that both the original and corrected sentences were illegal because they impermissibly allowed probation to run concurrently with incarceration on other counts, violating the principle that probation must commence immediately upon release from incarceration.
The appellate court held that the corrected sentence was illegal because it allowed a probationary term to run concurrently with an incarcerative sentence, violating the principle that probation must commence immediately upon release from incarceration. The court reversed and remanded for resentencing.
[1] A split sentence combining incarceration and probation may not exceed the maximum term provided by general law.
[2] A period of probation shall commence immediately upon the release of the defendant from incarceration.
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Join FLexlaw to unlock all legal intelligence“it is well settled that when a sentencing plan involves a split sentence, i.e., a sentence combining incarceration and probation, the total of the incarcerative and probationary portions of the sentence may not exceed the maximum term provided by general law”
Establishes the fundamental rule governing split sentences
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Join FLexlaw to unlock all legal intelligenceWalker pled guilty in March 1989 to two counts of lewd and lascivious acts upon a child, second-degree felonies with a maximum sentence of fifteen yea…
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JOANOS, Chief Judge.
Appellant, Henry H. Walker, appeals the sentence imposed after the trial court granted his motion for post-conviction relief, in which appellant challenged the legality of his sentence. We reverse.
In March 1989, appellant entered a negotiated plea of guilty to two counts of lewd and lascivious act upon a child. The trial court imposed a fifteen-year sentence, to be followed by five years of probation. In accordance with the plea agreement, the state dismissed three other charges. The guidelines scoresheet specified the negotiated sentence as the reason for departure from the recommended sentencing range.
On July 3, 1989, appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel and a coerced confession. This motion was denied. On February 7, 1990, appellant filed a motion for correction of sentence, alleging that the fifteen-year sentence followed by probation constituted an illegal sentence. On May 22, 1990, appellant filed a rule 3.850 motion for post-conviction relief, again alleging the illegality of the sentence. In an order entered June 14, 1990, the trial court granted the motion, and resentenced appellant to a ten-year sentence followed by five years of probation for one count, and a fifteen-year sentence for the other count, the sentences to run concurrently.
Appellant contends the corrected sentence is illegal, because he will be incarcerated for the fifteen-year sentence at the time he is serving the probationary period following the ten-year sentence. The state concedes that the sentencing disposition is impermissible.
There are two principles involved in the resolution of this case. First, it is well settled that when a sentencing plan involves a split sentence, i.e., a sentence combining incarceration and probation, the total of the incarcerative and probationary portions of the sentence may not exceed the maximum term provided by general law. Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992); Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991). Second, a period of probation “shall commence immediately upon the release of the defendant from incarceration.” § 948.-01(8), Fla.Stat. (1987); Horner v. State, 597 So. 2d 920, 921 (Fla. 2d DCA 1992). In other words, “(a] probationary term that falls between or interrupts an incarcerative sentence or sentences is illegal.” Humphrey v. State, 579 So. 2d 335, 336 (Fla. 2d DCA 1991). See also Barr v. State, 474 So. 2d 417, 419 (Fla. 2d DCA 1985); Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985). This is because an offender has the right to serve an uninterrupted split sentence. Washington v. State, 564 So. 2d 563 (Fla. 1st DCA 1990).
Appellant in this case pled guilty to two second-degree felonies, which carry a maximum sanction of fifteen years incarceration. § 775.082(3)(c), Fla.Stat. (1987). Since the maximum possible sanction which could be imposed was fifteen years, the original split sentence of fifteen years followed by five years of probation was illegal. At resentencing, the trial court attempted to remedy the excessive sentence by imposing a fifteen-year sentence as to one count, and a concurrent ten-year sentence followed by a probationary period of five years as to the other count. The state acknowledges that the attempt at correction was ineffective, in that the second resentencing plan would have appellant serving probation on one count at the same time he completed his incarceration on the other count.
Accordingly, the sentence imposed upon the grant of appellant’s motion for post-conviction relief is reversed and remanded for resentencing.
SMITH and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Walker v. State, 619 So. 2d 518 (Fla. 1st DCA 1993)…PER CURIAM. Henry H. Walker has appealed from his sentence imposed on remand in Walker v. State, 604 So. 2d 913 (Fla. 1st DCA 1992). We affirm. In March 1989, Walker pled guilty to two counts of lewd and lascivious acts on a child. He received concurrent terms of 15 years incarceration plus 5 years probation. Walker later moved to correct an illegal sentence…
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Kline v. State, 642 So. 2d 1146 (Fla. 1st DCA 1994)…ncarcerative portion of the sentence plus the probationary portion of the sentence may not exceed the maximum term of imprisonment which may be imposed as punishment for the crime. Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1992); Walker v. State, 604 So. 2d 913, 914 (Fla. 1st DCA 1992). Accordingly, we reverse Kline’s sentences and remand for resentencing. JOANOS, WOLF and BENTON, JJ., concur.…
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Brown v. State, 264 So. 3d 1097 (Fla. 1st DCA 2019)…4 (Fla. 2002). Finally, contrary to his assertions, Brown was on probation while in the secure facility. This Court has noted, "a period of probation shall commence immediately upon the release of the defendant from incarceration." Walker v. State , 604 So. 2d 913, 914 (Fla. 1st DCA 1992) (internal quotation and citation omitted). Because the civil commitment is not a sentence or incarceration, his probation started immediately upon the expiration of his seven-year incarcerative sentence and his transfer to t…
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
- Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985)
- COX v. State, 468 So. 2d 437 (Fla. 2d DCA 1985)
- Smith v. State, 584 So. 2d 154 (Fla. 2d DCA 1991)
- Washington v. State, 564 So. 2d 563 (Fla. 1st DCA 1990)
- Humphrey v. State, 579 So. 2d 335 (Fla. 2d DCA 1991)
- Horner v. State, 597 So. 2d 920 (Fla. 2d DCA 1992)
- Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992)
- Roache v. State, 547 So. 2d 706 (Fla. 1st DCA 1989)