BARRON THOMAS THOMPSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's double jeopardy argument lacked merit, but the sentences imposed were illegal departures from sentencing guidelines and statutory limits.
[1] A defendant may be convicted and punished for both a felony and a first-degree misdemeanor DUI offense arising from the same incident if the offenses are distinct and not…
[2] Community control is a permissible nonstate prison sanction when the sentencing guidelines permit any nonstate prison sanction.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of DUI offenses and appealed, arguing double jeopardy and illegal sentences. The trial court imposed community control sen…
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DANAHY, Acting Chief Judge.
For an accident with injury and property damage occurring on February 20, 1991, Barron Thomas Thompson, Jr., appeals his DUI convictions and sentences for violations of section 316.193(3)(c)(2), Florida Statutes (1989), a third degree felony, and of section 316.193(3)(c)(l), a first degree misdemeanor. He argues that the misdemeanor offense is a lesser included offense of the felony and thus he may not receive two convictions and punishments. He also argues that the sentences he received are illegal departures imposed beyond what his guidelines scoresheet permitted and without having written reasons. There is no merit to the double jeopardy issue under the circumstances of this case and we affirm both DUI convictions without discussion. However, there is error in the sentences he received which requires our reversal.
Thompson’s scoresheet recommended and permitted any nonstate prison sanction. He received two years’ community control followed by three years’ probation for the felony conviction and a concurrent one-year community control for the misdemeanor. Thompson claims that imposing community control is a departure sentence when the guidelines permit any nonstate prison sanction. He overlooks that the statute in effect at the time he committed these offenses, section 921.-001(5), allows in this situation a sentence of community control or a term of incarceration not to exceed twenty-two months. The trial court did err, however, in imposing the community control for two years when the statutory limit is twenty-two months.
On the sentence for the misdemean-or offense, the court further erred in imposing one year community control. The law does not allow such sentence for a misdemeanor. York v. State, 599 So. 2d 199 (Fla. 2d DCA 1992); DeLeon v. State, 536 So. 2d 305 (Fla. 2d DCA 1988).
In summary, we affirm both convictions, reverse the sentences imposed, and remand for resentencing in accord with this opinion.
Affirmed.
SCHOONOVER and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Williams, 667 So. 2d 191 (Fla. 1996)….” Matthews v. State, 557 So. 2d 938, 938 (Fla. 5th DCA 1990). The Second District believes that the "statutory limit” for imposing community control is twenty-two months. Williams v. State, 653 So. 2d 407, 408 (Fla. 2d DCA 1995); Thompson v. State, 617 So. 2d 411, 412 (Fla. 2d DCA 1993). The plain meaning of the above language indicates that only the “term of incarceration” is limited to 22 months. If the phrase had omitted the second "to” and read, "to community control or a term of incarceration not to ex…
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Williams v. State, 653 So. 2d 407 (Fla. 2d DCA 1995)…unity control. Appellant argues the two years’ community control portion of his sentence should be reversed because it exceeds the maximum which can be imposed when the guidelines range is any nonstate prison sanction. We held in Thompson v. State, 617 So. 2d 411 (Fla. 2d DCA 1993), that a trial court is limited to twenty-two months’ community control when the guidelines range is any nonstate prison sanction. See also § 948.01(4), Fla.Stat. (1991). However, Thompson did not involve a situation where the defe…
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Curtiss W. Carlin v. State, 626 So. 2d 316 (Fla. 5th DCA 1993)…Curtis W. Carlin, appellant, appeals his sentence of community control imposed for two misdemeanors, to be served concurrently. Community control can only be imposed for felony offenses. Section 948.01(3), Fla. Stat. (1991); See Thompson v. State, 617 So. 2d 411 (Fla. 2d DCA 1993); York v. State, 599 So. 2d 199 (Fla. 2d DCA 1992); DeLeon v. State, 536 So. 2d 305 (Fla. 2d DCA 1988). The sentences imposed for two misdemeanors are vacated. REVERSED. HARRIS, C.J., and COBB, J., concur.…
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
- York v. State, 599 So. 2d 199 (Fla. 2d DCA 1992)
- Dep't OF Bus. Reg. & Div. of Risk Mgmt. v. DeARMITT, 536 So. 2d 305 (Fla. 1st DCA 1988)
- Avelino DeLEON v. State, 536 So. 2d 305 (Fla. 2d DCA 1988)