EDDIE JAMES BRANTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a split sentence treating a defendant as a habitual offender only for the probation portion is an unlawful hybrid sentence.
[1] A split sentence is unlawful if a defendant is treated as a habitual offender for the probation portion only.
[2] A defendant must be treated as a habitual offender under both the incarcerative and probation portions of a split sentence, or under neither.
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Join FLexlaw to unlock all legal intelligenceBranton pleaded guilty to several offenses and received a split sentence. After serving the incarceration, he violated probation and was sentenced as …
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[*1074] HALL, Judge.
Eddie Branton challenges his sentences for several offenses. We reverse.
Branton entered a negotiated guilty plea to the charges of burglary of a structure and dealing in stolen property in case no. 89-5350, and to the charge of possession of a firearm in case no. 89-5351. He was sentenced to five and one-half years' imprisonment for the burglary offense, to be followed by three years’ probation as a subsequent felony offender for that offense as well as each of the other two.
Branton served the incarcerative portion of his split sentence and, after being placed on probation, admittedly committed numerous technical violations thereof. Branton's probation was then revoked and he was sentenced to a total of 70 years’ imprisonment as a habitual felony offender for the three offenses for which he was originally sentenced.
By this appeal, Branton contends that, pursuant to Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992), his original split sentence was unlawful. We agree. In Burrell, this court held that a split sentence pursuant to which the defendant is treated as a habitual offender for the probation portion only is an unlawful hybrid sentence. A defendant must be treated as a habitual offender under both portions of his split sentence or under neither. 610 So. 2d at 597. Since Branton was not treated as a habitual offender under the imprisonment portion of his split sentence, the trial court erred in treating him as a habitual offender when sentencing him upon revocation of probation.
Accordingly, we reverse Branton’s sentence and remand with directions that Branton be resentenced pursuant to his violation of probation for the balance of the original term that he could have received under the plea agreement, with credit for time served.
We note upon remand that an original Ecntence of concurrent terms may not be changed to consecutive terms absent unusual circumstances. Bruno v. State, 596 So. 2d 1205 (Fla. 4th DCA 1992).
Reversed and remanded.
FRANK, A.C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shaw v. State, 637 So. 2d 254 (Fla. 2d DCA 1994)…e trial court sentenced appellant to incarceration without habitual offender status followed by probation with habitual offender status. This type of sentencing scheme is improper. Davis v. State, 623 So. 2d 547 (Fla. 2d DCA 1993); Branton v. State, 620 So. 2d 1073 (Fla. 2d DCA 1993). We reverse the habitual offender sentences in cases 90-12067 and 90-12066. Since appellant has already served the incarceration portion of these improper sentences, upon remand he must be resenteficed within the guidelines. Davi…
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Mobley v. State, 647 So. 2d 264 (Fla. 2d DCA 1994)…he trial court did not sentence Mobley as a habitual offender under the incarcerative portion of his split sentence, the trial court erred in treating him as a habitual offender when sentencing him upon revocation of probation. See Branton v. State, 620 So. 2d 1073 (Fla. 2d DCA 1993). Further, Mobley is correct that he is entitled to receive credit for the time he actually served in prison on the possession count. See § 944.28(1), Fla.Stat. (1989); see also Pankhurst. We reverse Mobley’s sentence and remand…
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Felder v. State, 654 So. 2d 1270 (Fla. 2d DCA 1995)…found no abuse of discretion in placing Tito on ten years’ probation after completing his prior sentence. Tito, in effect, overruled this court’s decision in Burrell. Accordingly, we affirm. Nothing in this court’s decisions in Branton v. State, 620 So. 2d 1073 (Fla. 2d DCA 1993), and Pankhurst v. State, 632 So. 2d 142 (Fla. 2d DCA 1994), should be construed as expressing a rule different from that in Tito which, of course, this court may not do. Affirmed. PATTERSON and BLUE, JJ., concur.…
Authorities Cited
- Rolland Allen Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992)
- Bruno v. State, 596 So. 2d 1205 (Fla. 4th DCA 1992)
- Galloway v. Law Offs. of Merkle, Bright & Sullivan, P.A., 596 So. 2d 1205 (Fla. 4th DCA 1992)