EMMETT WILLIAM BAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a special condition of probation preventing early termination must be stricken, and the written sentence must be corrected to conform to the oral pronouncement.
The defendant's probation was revoked, and the trial court imposed a probationary split sentence. The written sentence did not accurately reflect the …
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PER CURIAM.
Mr. Baker challenges two aspects of the sentence imposed upon the revocation of his probation. We reverse and remand for the striking of a special condition of probation and the correction of the written sentence to conform to the oral pronouncement.
The trial court orally imposed a probationary split sentence of 3½ years’ incarceration followed by 11½ years’ probation. The written sentence reflects a true split sentence of 15 years’ incarceration with 11½ years of the incarceration suspended while the defendant is on probation. See Poore v. State, 531 So. 2d 161 (Fla.1988). Technically, the written sentence does not conform to the oral pronouncement. In this case the punishment imposed and the future punishment for any additional violation of probation would seem to be identical under either approach. See State v. Johnson, 585 So. 2d 272 (Fla.1991); Franklin v. State, 545 So. 2d 851 (Fla.1989). In order to avoid any possible confusion, and in light of our disposition on the condition of probation, on remand the sentence should be corrected. The trial court is authorized to modify the language of the sentence to impose the intended probationary split sentence without requiring the defendant to appear for resentencing.
As a special condition of probation, the trial court provided that the defendant could not be considered for early termination of probation. This condition must be stricken because a trial judge is not authorized to divest the Department of Corrections of its authority to recommend early termination of probation. § 948.-04(3), Fla.Stat. (1991). Moreover, a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer. § 948.05, Fla.Stat. (1991).
Reversed and remanded for correction of sentence and probation order. LEHAN, Acting C.J., and PARKER and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (12 total)
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Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996)…nce form, the trial court wrote the words “no early termination” in the blank space for additional conditions of the probation imposed. The state concedes that it was error for the trial court to impose this special condition, citing Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993). That case concerned a probation condition providing that the Department of Corrections could not recommend an early termination. The second district held that a trial judge does not have the power to prevent a future court from d…1 / 2
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Jones v. State, 666 So. 2d 191 (Fla. 2d DCA 1995)…completion of a sex offender program, it appears calculated to divest the Department of Corrections of its authority to recommend early termination of probation. § 948.04(3), Fla.Stat. (1998). This is impermissible, and, as stated in Baker v. State, 619 So. 2d 411, 412 (Fla. 2d DCA 1993), “a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer. § 948.05, Fla.Stat. (1991).” Thus, probation condition 33 must be stricken. Of the $288.0…
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Swedish v. State, 724 So. 2d 640 (Fla. 2d DCA 1999)…e conclude that the trial court erred by imposing a special condition of probation which attempts to prevent the Department of Corrections (DOC) from exercising its authority to recommend early termination of Swedish’s probation. See Baker v. State, 619 So. 2d 411, 411 (Fla. 2d DCA 1993). Therefore, we strike that special condition and direct the trial court, upon remand, to correct the judgment so that the DOC is made aware that the special condition no longer exists. Affirmed and remanded with directions…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- State v. Johnson, 585 So. 2d 272 (Fla. 1991)