JOHN C. WILCOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenges his resentencing following probation revocation, arguing that the trial court was constrained by sentencing guidelines and that he is entitled to immediate release having already served time exceeding the guideline recommendation. The court affirmed the sentence, holding that when a negotiated plea agreement includes a true split sentence, the trial court may impose the remaining suspended portion upon probation revocation without guideline constraints.
The trial court was not constrained by sentencing guidelines and could impose the remaining balance of the suspended portion of the original sentence pursuant to the negotiated plea agreement. Appellant is not entitled to immediate release because the trial court properly exercised its authority upon probation revocation to impose the suspended balance of the negotiated sentence.
[1] A trial court may impose a sentence for the remaining balance of a suspended portion of a sentence upon revocation of probation, consistent with the original plea agreeme…
[2] Cases limiting resentencing after probation revocation are distinguishable when the original sentence involved a negotiated plea agreement to a true split sentence.
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Join FLexlaw to unlock all legal intelligence“upon revocation of Appellant's probation, the trial court was entitled to impose a sentence for the remaining balance of the suspended portion of Appellant's sentence pursuant to the original plea agreement”
Establishes the core holding that the trial court may impose the remaining suspended sentence upon probation revocation when there is a negotiated split sentence agreement
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Join FLexlaw to unlock all legal intelligenceAppellant was originally charged with capital sexual battery in April 1988. He pleaded guilty to the lesser-included offense of attempted capital sexu…
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PER CURIAM.
Before us is an appeal from a sentence imposed following the revocation of Appellant’s probation. The record reveals that Appellant was originally charged by information in April 1988 with capital sexual battery; however, he ultimately entered a plea of guilty to the lesser-included offense of attempted capital sexual battery. The negotiated plea form shows that Appellant pleaded to a true split sentence of 20 years’ incarceration, with 10 years suspended, followed by 10 years’ probation. The plea form also indicates that Appellant stipulated “to an above the guidelines sentence in exchange for a plea to the lesser included offense.” Consistent with the negotiated plea, Appellant was sentenced in August 1988 to 20 years in prison, suspended after 10 years, the remainder to be served on probation. In contrast, the recommended guidelines sentence was 5½ to 7 years’ incarceration.
On October 6,1992, an affidavit of violation of probation was filed alleging Appellant violated probation within 72 hours of his release from prison. Following a hearing, the trial court found Appellant had violated his probation and sentenced him to 20 years in prison with credit for time served of 10 years, 32 days. In challenging his resentencing, Appellant contends that since he originally received a true split sentence, the trial court was constrained by language in the supreme court’s decision in Poore v. State, 531 So. 2d 161 (Fla.1988), as well as in this court’s decision in Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988), to resentence appellant within the limitations imposed by the sentencing guidelines recommendation. The resulting sentence, including a one-cell bump-up for violation of probation, would be 4⅜ to 9 years. However, since he has already served a sentence in excess of the maximum recommended guidelines range, Appellant argues he is entitled to immediate release. We disagree.
We find that the cases relied on by Appellant are distinguishable from the instant one as none involved a negotiated plea agreement to a true split sentence. Under the instant circumstances, upon revocation of Appellant’s probation, the trial court was entitled to impose a sentence for the remaining balance of the suspended portion of Appellant’s sentence pursuant to the original plea agreement. See § 948.06(1), Fla.Stat. (1987). See also State v. Johnson, 585 So. 2d 272, 274 (Fla.1991) (McDonald, Justice, specially concurring).
Accordingly, Appellant’s sentence is hereby AFFIRMED.
ZEHMER, C.J., and JOANOS and WEBSTER, JJ., concur.
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Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)…mposed upon Mr. Crews — the full original sentence with credit for time served. Affirmed. PATTERSON, C.J., and CASANUEVA, J., Concur. . We also reject Mr. Crews’ contention that the sentence was an illegal departure sentence. See Wilcox v. State, 625 So. 2d 920 (Fla. 1st DCA 1993). See also Lee v. State, 666 So. 2d 209 (Fla. 2d DCA 1995). . For example, in Mr. Crews’ case, if his offense had been committed prior to 1989, the trial judge would have been limited to imposing a 15!4-year sentence, or a 20-yea…
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Singletary v. Whittaker, 739 So. 2d 1183 (Fla. 5th DCA 1999)…the outset, the trial court could have imposed incarceration for the remaining eight years of the suspended portion of the sentence in accordance with the original sentencing agreement — and without any forfeiture of gain time. See Wilcox v. State, 625 So. 2d 920 (Fla. 1st DCA 1993). See also Lawrence v. State, 682 So. 2d 582, 583 (Fla. 5th DCA 1996). The guidelines ramifications discussed by the dissent are thus irrelevant to this appeal. Indeed, neither party to the appeal has even mentioned the sentenci…
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Lawrence v. State, 682 So. 2d 582 (Fla. 5th DCA 1996)…a plea, unless the defendant in his original plea specifically recognizes and agrees that, upon violation of his probation, he can receive an above-guidelines sentence equal to the probation portion of the split sentence. See, e.g., Wilcox v. State, 625 So. 2d 920 (Fla. 1st DCA 1993). If this agreement is made, there should be no difficulty in converting what is in the first instance a guidelines sentence into a departure sentence upon a violation of probation. Poore ⅛ limitations could also be avoided if the…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988)
- State v. Johnson, 585 So. 2d 272 (Fla. 1991)