MICHAEL PINARDI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Pinardi appeals his sentence following revocation of probation for grand theft of firearms and forgeries. The court found his sentence of five years incarceration with the entire period suspended and ordered to serve two years community control was illegal under Poore v. State because it lacked a proper probation or community control structure. The court remanded for resentencing under sentencing guidelines.
A suspended sentence unconnected with probation or community control is illegal under Poore v. State, 531 So.2d 161 (Fla.1988). The sentence is reversed and the case is remanded for resentencing under sentencing guidelines and within the limitations imposed by Poore.
[1] A suspended sentence unconnected with probation or community control is illegal if imposed prior to the 1992 amendment of Rule 3.986, Florida Rules of Criminal Procedure.
[2] A sentence that is not sanctioned by Poore v. …
Previewing 2 of 4 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“Because the sentence form was altered in order to accommodate the sentence, the effect of the sentence is vague. Did the trial court intend that the suspended portion of the sentence be forgiven if Pinardi successfully completes the community control? Or will the final three years of suspension hang loosely on their own, not supported by either probation or community control?”
Illustrates the fundamental legal problem with the sentence structure - ambiguity about whether the suspended portion is conditioned on community control or remains independently suspended.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePinardi pled nolo contendere to aggravated assault without a firearm and was placed on five years probation with a firearms restriction. He violated p…
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HARRIS, Judge.
Michael Pinardi timely appeals his sentence. He pled nolo contendere to aggravated assault without a firearm (a third degree felony). Adjudication was withheld and he was placed on five years probation with the condition that he not possess firearms. Pinardi violated his probation when he was arrested for committing a lewd act while driving a motorcycle and driving with a suspended license. In the VOP order, his probation was modified to include court costs and to require thirty days incarceration as a special condition.
Pinardi again violated his probation when he was arrested for grand theft of two firearms and uttering several forgeries. He entered a written nolo contendere plea to these offenses and his probation was revoked. He was resentenced to serve five years incarceration but the incarceration period was entirely suspended and he was ordered to serve two years community control. For some reason, Pinardi appeals from this judgment.
Because the sentence form was altered in order to accommodate the sentence, the effect of the sentence is vague. Did the trial court intend that the suspended portion of the sentence be forgiven if Pinardi successfully completes the community control? Or will the final three years of suspension hang loosely on their own, not supported by either probation or community control?
We have previously held that this type of sentence, not sanctioned by Poore v. State, 531 So. 2d 161 (Fla.1988), is illegal. See State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992). Even though we recognize that Rule 3.986, Florida Rules of Criminal Procedure, was modified in 1992 apparently to permit pure suspended sentences, this amendment was not effective until after the imposition of Pinardi’s sentence in this action. We cling to our belief, at least insofar as sentences prior to the rule change are concerned, that a suspended sentence unconnected with probation or community control is illegal.
We agree with defendant that the sentence of five years incarceration is a departure unsupported by the record. The maximum permissive range under the guidelines would have been three and one-half years. We are not sure, however, that the guidelines govern a “suspended” sentence. Certainly before this departure sentence can become effective, Pinardi must “violate” something again and that should in crease the permissive range. This point is moot, however, since we find the sentence illegal.
We remand for sentencing under the guidelines and pursuant to the limitations imposed by Poore.
GOSHORN, C.J., and GRIFFIN, J., concur.
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Cited By
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State v. McEACHERN, 700 So. 2d 1 (Fla. 5th DCA 1997)…. 2d 1224 (Fla. 5th DCA 1995); State v. Conte, 650 So. 2d 192 (Fla. 5th DCA), review denied, 659 So. 2d 270 (Fla.1995); State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992); Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992); and Pinardi v. State, 617 So. 2d 371 (Fla. 5th DCA 1993). We recognize that the First and Second Districts have held that a sentence of imprisonment which is entirely suspended is authorized as a true split sentence under Poore. See, e.g., Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA…
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Bell v. State, 651 So. 2d 237 (Fla. 5th DCA 1995)…robation.1 The defendant challenges the legality of this sentence. This type of suspended sentence is not one recognized by the supreme court in Poore v. State, 531 So. 2d 161 (Fla.1988) and was held to be illegal by this court in Pinardi v. State, 617 So. 2d 371 (Fla. 5th DCA 1993) and State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992). Accord Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992) (prison sentence suspended upon successful completion of probation is a conditional suspended sentence which is…
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Tuck v. State, 632 So. 2d 663 (Fla. 5th DCA 1994)…a one-cell bump-up. § 948.06, Fla.Stat. (1991); Fla. R.Crim.P. 3.701(d)14. Cf. Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992). SENTENCE VACATED and REMANDED FOR RESENTENCING. W. SHARP and THOMPSON, JJ., concur. . See, e.g., Pinardi v. State, 617 So. 2d 371 (Fla. 5th DCA 1993). The sentence is also illegal because it appends three years of probation to the original five year term. Such a sentence would exceed the five year statutory maximum for a third degree felony. State v. Holmes, 360 So. 2d 380 (Fl…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992)