EDWARD CLEAVE GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1992-12-16
No. 91-3918
ALLEN, WOLF and WEBSTER, JJ., concur.
610 So. 2d 652 Florida District Court of Appeal, First District (1992)

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Synopsis

Edward Cleave Green pleaded no contest to thirteen third-degree felonies and was sentenced to three consecutive terms of probation (15 years total) followed by a 3½-year prison term. The appellate court reversed and remanded for resentencing because consecutive probation terms followed by imprisonment constitute an illegal sentence as a matter of fundamental error.


Holding

The court reversed Green's sentences because the imposition of three consecutive terms of probation (15 years total) followed by a prison term constitutes an illegal sentence and fundamental error. The court did not reach Green's specific question about whether maximum incarceration can be followed by consecutive probation, finding the sentencing structure itself illegal.


Headnotes

[1] A sentence imposing multiple consecutive terms of probation followed by a prison term is illegal.

[2] Scrivener's errors in written judgments and sentences do not invalidate oral pronouncements made at a sentencing hearing.

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Key Quotes

“Clearly, the imposition of three terms of probation totaling fifteen years, to be followed by a prison term, constitutes an illegal sentence. Equally clearly, the error is a fundamental one.”

Establishes that consecutive probation followed by imprisonment is illegal and constitutes fundamental error requiring reversal.

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Facts & Procedural History

Green pleaded no contest to thirteen offenses (nine burglaries of a conveyance, three burglaries of a structure, and one grand theft) across twelve se…

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Opinion of the Court
PER CURIAM.

[*653] PER CURIAM.

Appellant pleaded no contest to thirteen offenses charged in twelve separate infor-mations. All of the offenses were third-degree felonies (nine were burglaries of a conveyance, three were burglaries of a structure and one was grand theft).

Believing that the trial court sentenced him to the maximum permitted guidelines sentence on one charge to be followed by three consecutive terms of probation on other charges, appellant raises the following issue: “In sentencing a defendant convicted of multiple counts of a primary offense, may the. trial judge properly impose the maximum permitted period of incarceration on one count to be followed by consecutive sentences of probation on other counts?” Our review of the record convinces us that we are required to reverse appellant’s sentences, and to remand for resentencing, for a reason other than that raised by appellant.

Appellant’s no-contest pleas were entered in cases 91-1684, 91-1694, 91-1709 (two counts), 91-1728, 91-1730, 91-1731, 91-1732, 91-1733, 91-1734, 91-1736, 91-1761 and 91-2167. Because of what appear to be scrivener’s errors, it is not possible to determine with any degree of assurance from the written judgments and sentences what the trial court intended regarding appellant’s sentences. However, there is no confusion in the trial court’s oral pronouncements made at the sentencing hearing.

At the sentencing hearing, the trial court sentenced appellant as follows: In cases 91-1684, 91-1694 and 91-1709 (as to both counts), appellant was placed on probation for five years, the four terms of probation to run concurrently. In cases 91-1728, 91-1730, 91-1731 and 91-1732, appellant was also placed on probation for five years, the four terms of probation to run concurrently with each other, but consecutively to the 5-year terms of probation imposed in cases 91-1684, 91-1694 and the two counts of case 91-1709. In cases 91-1733, 91-1736, 91-1761 and 91-2167, appellant was again placed on probation for five years, the four terms of probation to run concurrently with each other, but consecutively to all of the other terms of probation imposed.

Finally, in case 91-1734, appellant was sentenced to 3½ years in prison (the maximum permitted guidelines sentence).

With regard to this last sentence, the trial court said, “This sentence is consecutive to all other sentences imposed ” (emphasis added).

Clearly, the imposition of three terms of probation totaling fifteen years, to be followed by a prison term, constitutes an illegal sentence. Equally clearly, the error is a fundamental one. Accordingly, we must reverse appellant’s sentences and remand with directions that the trial court resen-tence appellant.

Our resolution of this appeal obviates the need to reach the issue raised by appellant. However, we note that if, as appellant and the state seem to believe, the trial court intended to sentence appellant to 3½ years in prison to be followed by three consecutive 5-year terms of probation, we are unable to discern how such a sentence would serve any proper purpose. We direct the trial court’s attention to the decisions in Poore v. State, 531 So. 2d 161 (Fla.1988); and State v. Tripp, 591 So. 2d 1055 (Fla. 2d DCA1991).

REVERSED and REMANDED, with directions.

ALLEN, WOLF and WEBSTER, JJ., concur.


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