CECELIA WALLACE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentencing judge cannot impose new incarceration exceeding the remaining balance of a suspended sentence upon a violation of probation in a true split sentence.
Cecelia Wallace received a true split sentence for grand theft, with a portion of her confinement suspended and placed on probation. She violated prob…
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BLUE, Judge.
Cecelia Wallace (Wallace) seeks review of her sentence imposed upon a violation of probation. We reverse and remand for re-sentencing.
On December 11, 1988, Wallace was sentenced as a habitual offender on a grand theft charge. Her original sentence consisted of ten years’ imprisonment with five years of the confinement period suspended and Wallace placed on five years’ probation. This sentence was a “true split sentence.” Poore v. State, 531 So. 2d 161 (Fla.1988). Following the completion of the prison term, Wallace began serving her probation. However, she violated her probation, whereupon the court revoked the probation and sentenced her to ten years in prison as a habitual offender with 949 days’ credit for time actually served. This sentence was erroneously imposed. In a true split sentence, upon a violation of the probation, “the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence.” Poore, 531 So. 2d at 164.
Accordingly, we reverse the sentence and remand for the court to impose a five year prison sentence, the suspended portion of the original sentence, with credit applied only for the time served, if any, after Wallace’s arrest for violation of probation. See Owens v. State, 557 So. 2d 199 (Fla.1990).
HALL, A.C.J., and PARKER, J., concur.
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Johnson v. State, 641 So. 2d 970 (Fla. 2d DCA 1994)…ion upon suspending the six-year prison term after three years. See Poore, 531 So. 2d at 164-65. Upon violation of probation, Mr. Johnson could not receive more than the three suspended years of his original terms of incarceration. Wallace v. State, 618 So. 2d 797 (Fla. 2d DCA 1993). Thus, if the original sentences were true split sentences, there is a possibility that the alleged violation of probation did not occur within a legal period of probation and could not be the basis for a revocation.1 Even if the…
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State v. Benjamin, 685 So. 2d 1335 (Fla. 2d DCA 1996)…of probation. In a true split sentence, upon a violation of probation, the trial court may not order new incarceration that exceeds the remaining balance of the suspended term. Sullivan v. State, 625 So. 2d 955 (Fla. 2d DCA 1993); Wallace v. State, 618 So. 2d 797 (Fla. 2d DCA 1993). Consequently, it was [*1337] error to give Benjamin a suspended sentence of ten years’ prison. On remand, Benjamin’s sentence may not exceed the five-year term previously suspended. In case number 93-00603, Benjamin admitted vio…
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Moran v. State, 683 So. 2d 603 (Fla. 2d DCA 1996)…ual offender. Prior to Mr. Moran’s negotiated plea, this court announced that a habitual offender sentence could be imposed as a true split sentence subject to the conditions described in Poore v. State, 531 So. 2d 161 (Fla.1988). Wallace v. State, 618 So. 2d 797 (Fla.App. 2nd Dist.1998). Accordingly, the maximum sentence that could have been imposed upon this violation of community control was five years’ imprisonment as a habitual offender. On remand, the trial court shall also prepare a written order spec…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Owens v. State, 557 So. 2d 199 (Fla. 2d DCA 1990)