LORENZO LEROY CLEMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Clemons challenged his sentencing imposed after a nolo plea in two criminal cases, arguing that the concurrent imposition of incarceration and probation was illegal. The court reversed and remanded for resentencing, holding that probation and incarceration cannot be imposed to run concurrently because probation cannot be meaningfully complied with while imprisoned.
It is reversible error to impose probation and incarceration concurrently because probation cannot be complied with while imprisoned and the rehabilitative purpose of probation is incompatible with simultaneous incarceration. On remand, if the state refuses to accept concurrent prison terms, the defendant must be permitted to withdraw his plea and negotiate a new plea or proceed to trial.
[1] It is reversible error to impose incarceration and probation concurrently.
[2] The rationale for prohibiting concurrent imposition of incarceration and probation is the impossibility of complying with probation while incarcerated and the rehabilitat…
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Join FLexlaw to unlock all legal intelligence“it is reversible error to impose probation and incarceration concurrently”
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Join FLexlaw to unlock all legal intelligenceClemons was charged with aggravated assault with a firearm in the first case and burglary of a conveyance and grand theft auto in the second case. Und…
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PER CURIAM.
Defendant challenges the propriety of a sentence imposed after a nolo plea in two cases. We reverse and remand for resentencing.
In the first case, defendant was charged with aggravated assault with a firearm. In the second case, he was charged with burglary of a conveyance and grand theft auto. Under the terms of the plea agreement, the state was to abandon the burglary of a conveyance charge in the second case. In return, defendant was to plead nolo to the two remaining charges in the two cases, for which he was to receive “any legal sentence, concurrent both counts” within the “recommended” range of the guidelines.
At sentencing, the trial court imposed three years incarceration, the mandatory minimum, for the aggravated assault with a firearm. The court then imposed five years probation for the grand theft, to run concurrent with the prison sentence. A condition of probation was to provide restitution to the victim, the amount to be determined at a hearing to be held at a later date. Defense counsel objected, arguing that incarceration and probation cannot be imposed to run concurrently.
On appeal, defendant argues that the concurrent imposition of incarceration and probation was illegal in this case. The primary authority he cites, Tripp v. State, 622 So. 2d 941 (Fla.1993) (revised opinion on denial of rehearing), offers little support to his position since he, after all, did not receive a Tripp sentence. Nonetheless, a long line of cases from this court directly on point holds that it is reversible error to impose probation and incarceration concurrently. E.g., Nobles v. State, 605 So. 2d 996. (Fla. 2d DCA 1992); Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985); Roy v. State, 207 So. 2d 52 (Fla. 2d DCA 1967), cert. dismissed, 211 So. 2d 554 (Fla.1968). The rationale in these cases stems from “the impossibility of complying with probation while in prison. Furthermore, the underlying concept of probation is rehabilitation, not punishment.” Barr, 474 So. 2d at 419. Under these cases, resentencing is necessary.
Defendant argues that on remand, he should receive a concurrent prison sentence for the grand theft. We note that one problem in this case is that the plea agreement, which was entered into by the state and accepted by the trial court, explicitly calls for “concurrent” dispositions for the two offenses. Since a mandatory minimum must be imposed for the aggravated assault with a firearm and since probation cannot be imposed simultaneously with incarceration, the trial court’s sentencing options under the plea agreement are severely limited.
If on remand the state is unwilling to accept concurrent prison terms, defendant should be allowed to withdraw his plea and be subject to trial, but with the opportunity to negotiate a new plea. See Morris v. State, 620 So .2d 1081 (Fla. 2d DCA 1993). Defendant’s point two on appeal is rendered moot by our disposition.
Reversed and remanded for resentencing.
RYDER, A.C.J., HALL, J., and REESE, THOMAS S., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gardner v. State, 656 So. 2d 933 (Fla. 1st DCA 1995)…d, we are concerned only with the legality of these final sentences. Under the first point, appellant contends that his sentences are illegal, because the court imposed concurrent terms of probation and incarceration, and he cites Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA), review denied, 639 So. 2d 976 (Fla.1994), which holds that it is reversible error to impose probation and incarceration concurrently. See also Mitchell v. State, 594 So. 2d 823 (Fla. 1st DCA 1992) (incareerative portions of sent…
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Alphonso Prosperity Smith v. Kearney, 802 So. 2d 387 (Fla. 4th DCA 2001)…in case 83-1877 the trial court imposed concurrent sentences of probation and incarceration, which is illegal. See Lee v. State, 717 So. 2d 1088, 1089 (Fla. 4th DCA 1998); Benjamin v. State, 705 So. 2d 126, 126 (Fla. 2d DCA 1998); Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA 1994). However, determining that the sentence is illegal does not mean that his custody was unlawful. While Smith may have been entitled to resentencing, a resentencing could very likely have resulted in the elimination of the pro…
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Peters v. State, 658 So. 2d 1175 (Fla. 2d DCA 1995)…given the option of proceeding to trial on the original charges or agreeing to a sentence, with the trial court’s concurrence, within the forty year statutory maximum. Cayson v. State, 638 So. 2d 1061 (Fla. 4th DCA 1994). See also Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA), rev. denied, 639 So. 2d 976 (Fla.1994). Affirmed in part, reversed in part, and remanded with instructions. SCHOONOVER, A.C.J., and PATTERSON and LAZZARA, JJ., concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- ROY v. State, 207 So. 2d 52 (Fla. 2d DCA 1967)
- Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985)
- ROY v. State, 211 So. 2d 554 (Fla. 1968)
- Nobles v. State, 605 So. 2d 996 (Fla. 2d DCA 1992)
- Alonzo v. Morris, 620 So. 2d 1081 (Fla. 2d DCA 1993)