ROBERT DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Davis appealed his probation revocation and subsequent sentencing as a habitual offender. The court affirmed the probation violation finding but reversed the habitual offender sentence, holding that a defendant cannot receive a hybrid sentence combining guidelines imprisonment with habitual offender probation status.
The court held that Davis was improperly sentenced as a habitual offender. A court cannot impose a hybrid split sentence combining guidelines imprisonment without habitual offender status followed by probation as a habitual offender. Because Davis served his original imprisonment under the guidelines, he could not be sentenced as a habitual offender upon probation revocation.
[1] A defendant cannot be sentenced as a habitual offender upon revocation of probation if the initial sentence, imposed pursuant to a negotiated plea, included a guidelines…
[2] A court cannot impose a hybrid split sentence of incarceration without habitual offender status followed by probation as a habitual offender.
Previewing 2 of 3 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“The court could not, however, do both; it could not impose a hybrid split sentence, i.e. incarceration without habitual offender status followed by probation as a habitual offender.”
Establishes the core legal principle that courts cannot impose hybrid sentences combining guidelines imprisonment with habitual offender probation status.
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Join FLexlaw to unlock all legal intelligenceDavis pleaded guilty to burglary of a structure and was sentenced to eighteen months imprisonment followed by two years probation under the sentencing…
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PER CURIAM.
The appellant, Robert Davis, challenges an order finding him guilty of violating the terms and conditions of his probation and the sentence imposed upon him after his probation was revoked. We find no merit in the appellant’s contention that the court erred by finding that he had violated his probation. We, accordingly, affirm, without further discussion, the order revoking his probation. We agree, however, with the appellant’s contention that he was improperly sentenced and, accordingly, reverse and remand for resentencing.
The appellant, pursuant to a negotiated plea agreement, pled guilty to burglary of a structure and was sentenced to eighteen months imprisonment followed by two years probation. The appellant was not sentenced to imprisonment as a habitual offender, but the sentence form provided that he would serve his probation as a habitual offender. After serving the imprisonment portion of his sentence, the appellant was charged with, and found guilty of, violating his probation on two different occasions. The first time he was placed back on probation, and the second time he was sentenced to ten years imprisonment as a habitual felony offender. This timely appeal followed.
As mentioned above, we find merit in the appellant’s contention that the trial court erred by sentencing him as a habitual offender after his probation was revoked. Although the record is not complete, it appears that the court found that the appellant was a habitual offender. Once the court made this determination it could have elected not to sentence him as a habitual offender and impose a guidelines sentence, or it could have sentenced him as a habitual offender. The court could not, however, do both; it could not impose a hybrid split sentence, i.e. incarceration without habitual offender status followed by probation as a habitual offender. Moorer v. State, 614 So. 2d 643 (Fla. 2d DCA 1993); Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992). The appellant, pursuant to a negotiated plea, served the imprisonment portion of his sentence under the guidelines. Accordingly, based on the facts of this particular case he could not be sentenced as a habitual offender upon revocation of probation. Thompson v. State, 618 So. 2d 335 (Fla. 2d DCA 1993). Cf. Snead v. State, 616 So. 2d 964 (Fla.1993).
Since the appellant was improperly sentenced as a habitual offender, we reverse and remand for resentencing within the guidelines. The court may impose a one cell increase for each violation of probation. Thompson. See Williams v. State, 594 So. 2d 273 (Fla.1992); Fla.R.Crim.P. 3.701(d)(14).
Affirmed in part; reversed in part; and remanded.
SCHOONOVER, A.C.J., and THREADGILL and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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King v. State, 681 So. 2d 1136 (Fla. 1996)…G, IMPOSE AN HABITUAL FELONY OFFENDER PRISON TERM, THE TOTAL OF WHICH DOES NOT EXCEED THE MAXIMUM ALLOWED BY LAW, PROVIDED THAT IT ALLOWS CREDIT FOR ALL PRIOR PERIODS OF INCARCERATION? The district court also certified conflict with Davis v. State, 623 So. 2d 547 (Fla. 2d DCA 1993). King, 648 So. 2d at 186. We have jurisdiction based on article V, section 8(b)(4) of the Florida Constitution. For the reasons discussed below, we answer the certified question in the negative. Marvin Lee King was charged in thr…
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Terry v. State, 808 So. 2d 1249 (Fla. 2002)…nder, although not authorized by statute or rule, is not an illegal sentence unless the total sentence imposed exceeds the statutory maximum for the particular offense at issue.” Id. In King, we went on to discuss the conflict case, Davis v. State, 623 So. 2d 547 (Fla. 2d DCA 1993). In Davis, the defendant agreed to a hybrid split sentence as part of a negotiated plea agreement. The defendant pled guilty to burglary of a structure and was sentenced to eighteen months’ imprisonment followed by two years’ prob…
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King v. State, 648 So. 2d 183 (Fla. 1st DCA 1994)…nequivocally requires: “Sentences imposed after revocation of probation or community control must be in accordance with the guidelines.” Fla. R.Crim.P. 3.701(d)(14); see Franklin v. State, 545 So. 2d 851 (Fla.1989). The defendant in Davis v. State, 623 So. 2d 547, 548 (Fla. 2d DCA 1993) was sentenced to prison followed by probation. He “was not sentenced to prison as a habitual offender, but the sentence form provided that he would serve his probation as a habitual offender.” (The original sentencing judge i…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Snead v. State, 616 So. 2d 964 (Fla. 1993)
- Rolland Allen Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992)
- Moorer v. State, 614 So. 2d 643 (Fla. 2d DCA 1993)
- Thompson v. State, 618 So. 2d 335 (Fla. 2d DCA 1993)