WILLIAM B. RANDOLPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Randolph appeals his conviction for attempted handling and fondling of a child under sixteen, challenging both his sentence and the trial judge's denial of his motion to recuse. The court reverses the illegal sentence and remands for resentencing, while affirming the denial of the recusal motion.
The sentence was illegal and reversed because it violated statutory requirements: the probationary split sentence exceeded the statutory maximum, the special condition requiring prison service as a condition of probation was illegal, and the probation term was not definite and certain. The departure reason (abuse of familial authority) was invalid in a child molestation case. The denial of the motion to recuse was affirmed because it was legally sufficient and the judge did not create an adversary atmosphere.
[1] A probationary split sentence cannot exceed the statutory maximum sentence.
[2] A trial court errs by imposing community control and probation in addition to a prison term when such additions exceed the statutory maximum sentence.
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Join FLexlaw to unlock all legal intelligence“A probationary split sentence cannot exceed the statutory maximum sentence.”
Establishes the foundational legal principle that invalidates the trial judge's composite sentence structure
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Join FLexlaw to unlock all legal intelligenceRandolph was convicted of attempted handling and fondling of a child under sixteen, a third-degree felony. The trial judge imposed a sentence consisti…
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PATTERSON, Judge.
William Randolph appeals from his judgment and sentence for attempted handling and fondling of a child under sixteen. He argues that the trial judge erred in sentencing him and in denying his motion to recuse. We reverse Randolph’s sentence, affirm the denial of the motion to recuse, and remand for resentencing.
In sentencing Randolph for a third-degree felony, the trial judge imposed a sentence of a five-year term of probation, with a “special condition” that Randolph serve five years in prison and that, upon release from prison, Randolph would be placed on community control for two years, with “the balance of the term” to be served on probation. No objection was necessary to preserve the issue for review, because this is an illegal sentence which constitutes fundamental error. See Greenhalgh v. State, 582 So. 2d 107 (Fla. 2d DCA 1991). A probationary split sentence cannot exceed the statutory maximum sentence. See Blizzard v. State, 600 So. 2d 542 (Fla. 1st DCA 1992); Gerow v. State, 516 So. 2d 326 (Fla. 2d DCA 1987). Thus, it was error to impose community control and probation in addition to the five-year prison term.
Also, the special condition of probation that Randolph serve five years in prison was illegal. See Rosa v. State, 592 So. 2d 769 (Fla. 5th DCA 1992); § 948.03(5), Fla.Stat. (1991). Furthermore, ordering that the “balance of the term” be served on probation was illegal because the term of probation was not definite and certain. See Maynard v. State, 561 So. 2d 449 (Fla. 5th DCA 1990).
In departing from the guidelines, the trial judge gave as his departure reason an abuse of a position of familial authority. This is not a valid reason for departure in a child molestation case because “any act of child molestation involves an abuse of authority and breach of trust.” Cumbie v. State, 574 So. 2d 1074 (Fla.1991) (attempted capital sexual battery); see Wilson v. State, 567 So. 2d 425 (Fla.1990) (lewd and lascivious assault on a child under sixteen years of age). Accordingly, we reverse Randolph’s sentence and remand for resentencing within the guidelines.
Randolph also contends that the trial judge erred in denying his motion to recuse. In hearing the motion, the trial judge asked if the prosecutor “wish[ed] to be heard on it?” The prosecutor made comments which were inappropriate because they went beyond the question of the legal sufficiency of the motion. See Townsend v. State, 564 So. 2d 594 (Fla. 2d DCA 1990) (trial judge may only determine legal sufficiency of motion to disqualify). The prosecutor’s com- merits, however, should not be attributed to the trial judge. The trial judge denied the motion to recuse without comment, and Randolph does not dispute the state’s assertion that the motion was legally insufficient. The judge did not create an “adversary atmosphere” with Randolph. Cf. Turner v. State, 598 So. 2d 186, 187 (Fla. 1st DCA 1992) (judge denied truthfulness of allegations and challenged defendant to prove them). Thus, we affirm the denial of the motion to recuse.
Affirmed in part, reversed in part, and remanded.
DANAHY, A.C.J., and HALL, J., concur.
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Kirby Lynn Chastine v. The Honorable Va. Gay Broome, 629 So. 2d 293 (Fla. 4th DCA 1993)…t the state does not deny the incident took place. The trial judge did not properly respond to the allegations, but only passed on legal sufficiency. The state’s improper response to the facts will not be imputed to the judge. See Randolph v. State, 626 So. 2d 1006 (Fla. 2d DCA 1993).…
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Sims v. State, 688 So. 2d 337 (Fla. 2d DCA 1996)…tenced for the probation revocation in case no. 89-4068. First, the state incorrectly contends that an objection is required to preserve error in the case of an illegal sentence. See State v. Whitfield, 487 So. 2d 1045 (Fla.1986); Randolph v. State, 626 So. 2d 1006 (Fla. 2d DCA 1993). Turning to the merits, the record indicates that the conviction of grand theft in case no. 89-4068 was a third degree felony although the sentencing memo for the violation of probation disposition incorrectly reflects that the gr…
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State v. Rowell, 669 So. 2d 1089 (Fla. 2d DCA 1996)…issue because it failed to object in the trial court. This error, however, appears to be in the nature of an illegal sentence. An objection in the trial court is not necessary to preserve for appellate review an illegal sentence. Randolph v. State, 626 So. 2d 1006 (Fla. 2d DCA 1993). We reverse the sentence and remand with directions for the trial court to adjudicate Rowell guilty. CAMPBELL, A.C.J., and PARKER and PATTERSON, JJ., concur. . Our review of the record shows that this was an open plea. If there…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Greenhalgh v. State, 582 So. 2d 107 (Fla. 2d DCA 1991)
- Cumbie v. State, 574 So. 2d 1074 (Fla. 1991)
- Townsend v. State, 564 So. 2d 594 (Fla. 2d DCA 1990)
- Turner v. State, 598 So. 2d 186 (Fla. 1st DCA 1992)
- Gerow v. State, 516 So. 2d 326 (Fla. 2d DCA 1987)
- Rosa v. State, 592 So. 2d 769 (Fla. 5th DCA 1992)
- P.J. Blizzard v. State, 600 So. 2d 542 (Fla. 1st DCA 1992)
- Maynard v. State, 561 So. 2d 449 (Fla. 5th DCA 1990)