ROBERT K. TUCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Tuck appealed his sentencing as a habitual offender following a probation violation, challenging whether the trial court had properly followed statutory requirements to habitualize him prior to the original sentencing. The Florida appellate court vacated the habitual offender sentence and remanded for resentencing, holding that the trial court lacked authority to impose such a sentence without prior habituality proceedings.
The trial court erred in sentencing Tuck as a habitual offender because under Snead v. State, a defendant cannot be sentenced as a habitual offender following probation violation unless the necessary steps to habitualize him had been taken prior to the original sentencing. Upon remand, Tuck becomes subject to any sentence the court might have originally imposed with the addition of a one-cell bump-up.
[1] A defendant cannot be sentenced as a habitual offender following a violation of probation unless the necessary steps to habitualize him were taken prior to the original s…
[2] Upon violation of probation, a defendant may be subject to any sentence the court might have originally imposed, with the addition of a one-cell bump-up, when the origina…
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Join FLexlaw to unlock all legal intelligence“a defendant cannot be sentenced as a habitual offender following a violation of probation unless the necessary steps to habitualize him had been taken prior to the original sentencing hearing”
Statement of the controlling legal rule from Snead v. State establishing when habitual offender sentencing is permissible
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Join FLexlaw to unlock all legal intelligenceTuck pled guilty to grand theft of a motor vehicle in January 1992 and was sentenced to five years with four years suspended, one year in county jail,…
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GRIFFIN, Judge.
Robert Kent Tuck pled guilty to grand theft of a motor vehicle, a third degree felony, on January 13, 1992. In February of 1992, he was sentenced as follows:
to the Department of Corrections for a term of Five (6) years, four (4) years suspended, one (1) year to be served in the Orange County Jail, with credit for 161 days jail time, that after you have served all of said term, you shall be placed on probation for a period of Three (3) years under the supervision of the Department of Corrections....
After completing his term in the county jail, Tuck violated his probation by leaving a drug treatment program. The state then filed a notice of intention to seek habitual offender sentencing. Tuck pled guilty to the violation and was sentenced, over objection, as a habitual offender to five years in prison, with credit for one year and one hundred and seven days time served.
We agree with Tuck that the lower court erred in sentencing him as a habitual offender. In Snead v. State, 616 So. 2d 964 (Fla.1993) our supreme court held that a defendant cannot be sentenced as a habitual offender following a violation of probation unless the necessary steps to habitualize him had been taken prior to the original sentencing hearing. The state concedes that, under Snead, sentencing Tuck as a habitual offender was error. The harder question is what sentence is available to the court on remand. Tuck was originally given a sentence which does not fall within any of the sentencing alternatives recognized in Poore v. State, 531 So. 2d 161 (Fla.1988).1 In this particular case, given the nature of the original defect in the sentence, we conclude that upon violation of probation, Tuck became subject to any sentence the court might have originally imposed with the addition of a one-cell bump-up. § 948.06, Fla.Stat. (1991); Fla. R.Crim.P. 3.701(d)14. Cf. Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992).
SENTENCE VACATED and REMANDED FOR RESENTENCING.
W. SHARP and THOMPSON, JJ., concur. . See, e.g., Pinardi v. State, 617 So. 2d 371 (Fla. 5th DCA 1993). The sentence is also illegal because it appends three years of probation to the original five year term. Such a sentence would exceed the five year statutory maximum for a third degree felony. State v. Holmes, 360 So. 2d 380 (Fla.1978).
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Citator
Cited By
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Pliny H. Sohl v. State, 710 So. 2d 676 (Fla. 5th DCA 1998)…5 So. 2d 1268 (Fla. 4th DCA 1997) (once the court declines to sentence defendant as an habitual offender, the court is bound to sentence defendant under the guidelines after a revocation of probation and cannot habitualize defendant); Tuck v. State, 632 So. 2d 663 (Fla. 5th DCA 1994) (error to sentence defendant as an habitual offender after a violation of probation, when the state had not taken necessary steps for habitualization prior to the original plea and sentencing); Armstrong v. State, 622 So. 2d 576,…
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Vela v. State, 645 So. 2d 30 (Fla. 5th DCA 1994)…e sentences imposed on the original charges following his violation of probation cannot be increased to 15 years. Although Vela cannot be habitualized on the original charges in 91-4710, see Snead v. State, 616 So. 2d 964 (Fla.1993); Tuck v. State, 632 So. 2d 663 (Fla. 5th DCA 1994), Vela can be habitualized on the new charges in 92-311. See Silvestrini v. State, 633 So. 2d 1143 (Fla. 2d DCA 1994); Rice v. State, 622 So. 2d 1129 (Fla. 5th DCA 1993).1 Therefore, [*32] Vela’s habitualized sentences in 92-311 w…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Snead v. State, 616 So. 2d 964 (Fla. 1993)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- Pinardi v. State, 617 So. 2d 371 (Fla. 5th DCA 1993)