RICHARD RAYMOND FLEMING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a one-year county jail term imposed as a condition of probation for a DUI conviction, when added to a prior sentence for vehicular homicide, violates the statutory prohibition against cumulative county jail sentences exceeding one year.
[1] A court may impose a sentence of imprisonment in the county jail only if the total of the prisoner's cumulative sentences does not exceed one year.
[2] When a defendant is sentenced for multiple offenses at the same time, the cumulative sentences to be served in county jail cannot exceed one year.
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Join FLexlaw to unlock all legal intelligenceFleming was convicted of vehicular homicide and DUI serious bodily injury. The trial court sentenced him to five years for vehicular homicide and a co…
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W. SHARP, Judge.
Fleming appeals his judgment and sentence after a jury convicted him of Count I, vehicular homicide;1 and Count II, DUI serious bodily injury.2 We affirm the judgment, but reverse the sentence for Count II in part.
The trial judge sentenced Fleming to five years in the DOC for the vehicular homicide conviction, and a consecutive five years on probation with the condition that Fleming serve one year in county jail for the DUI serious bodily injury conviction. Fleming claims that section 922.051 prohibits the imposition of the one year county jail term as a condition or probation. The statute provides:
[wjhen a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of the prisoner’s cumulative sentences is not more than one year. If a defendant is sentenced for several offenses at the same time, he cannot be sentenced to more than a one year stint in the county jail. In Singleton v. State, 554 So. 2d 1162 (Fla.1990), the Florida Supreme Court held that sentences imposed for various offenses at the same hearing may not cumulatively exceed one year in the county jail. This court followed Singleton in Lusink v. State, 576 So. 2d 935 (Fla. 5th DCA 1991).
This case is distinguishable from Singleton and Lusink, since although it includes cumulative sentences for multiple offenses totalling more than one year, only one year is to be spent in the county jail. Nevertheless, this pattern of sentence appears to run afoul of the language of the statutes quoted above:
[t]he court may impose a sentence of imprisonment in the county jail if the total of the prisoner’s cumulative sentences is not more than one year, (emphasis supplied).
We therefore vacate Fleming’s sentence for DUI and remand for resentencing. In all other respects, the judgment and the other sentence are affirmed.
AFFIRMED in part; DUI sentence VACATED; REMANDED for resentencing.
GOSHORN and DIAMANTIS, JJ., concur. . § 316.193, Fla.Stat. (1991).
. § 316.193, Fla.Stat. (1991).
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Flores v. State, 974 So. 2d 556 (Fla. 5th DCA 2008)…res did not negate a necessary element for a conviction on the evidence tampering charge. In challenging the validity of his sentence, Flores relies primarily on section 922.051, Florida Statutes (2006), and our [*559] decision in Fleming v. State, 637 So. 2d 945 (Fla. 5th DCA 1994). Flores’ reliance is misplaced. Section 922.051 provides as follows: § 922.051 Imprisonment in County Jail, Term of One Year of Less. When a statute expressly directs that imprisonment be in a state prison, the court may impos…
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Leach v. State, 774 So. 2d 899 (Fla. 4th DCA 2001)…prisoner’s cumulative sentences is not more than 1 year. Under this statute, if Leach’s sentence to the drug farm is considered incarceration, Leach’s total cumulative sentence of twenty-nine months exceeds the one year limit. See Fleming v. State, 637 So. 2d 945 (Fla. 5th DCA 1994). As there is no evidence in the record below from which to determine whether the sentence to the drug farm is sufficiently restrictive to be deemed the equivalent of incarceration, we reverse and remand for an evidentiary hearin…
Authorities Cited
- Singleton v. State, 554 So. 2d 1162 (Fla. 1990)
- Patrick v. State, 576 So. 2d 935 (Fla. 5th DCA 1991)