ARTHUR L. DISBROW, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that reverse split sentences (community control followed by conditional incarceration) constitute downward departures from sentencing guidelines and require written justification when imposed. The Court rejected arguments that reverse split sentences are exempt from guideline requirements.
A reverse split sentence is a legal sentence under Florida law but is not exempt from sentencing guidelines. When a reverse split sentence creates the possibility of no incarceration, it constitutes a downward departure requiring written reasons under the guidelines.
[1] A "back end split sentence" is considered a downward departure from the sentencing guidelines.
[2] A downward departure sentence requires written reasons to be legally valid.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A reverse split sentence is a legal sentence under section 948.01(11), Florida Statutes (1991). However, we cannot accept the argument that a reverse split sentence is exempt from the sentencing guidelines any more than other sentencing options under section 948.01”
Establishes that while reverse split sentences are permitted by statute, they remain subject to sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceArthur Disbrow was convicted of two burglaries and received probation sentences. After violating probation by committing loitering and prowling, the t…
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GRIMES, Chief Justice.
We review State v. Disbrow, 626 So. 2d 1123 (Fla. 5th DCA 1993), in which the court certified the following as a question of great public importance:
IS A REVERSE SPLIT SENTENCE A DOWNWARD DEPARTURE FROM THE GUIDELINES WHICH REQUIRES WRITTEN JUSTIFICATIONS?
Id. at 1124. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.
Arthur Disbrow was convicted of two burglaries and received two sentences of five and fifteen years of probation. He then violated his probation by committing the offense of loitering and prowling. The trial judge revoked his two previous probation sentences and sentenced Disbrow to two years of community control followed by terms of five and thirteen years of incarceration. As part of the sentence the judge held that if Disbrow complied with the conditions of the community control the terms of incarceration would be modified and eliminated. These sentences are known as “back end” or reverse split sentences.
The district court of appeal vacated the sentence and remanded for resentencing. The court reasoned that there was no difference between the trial judge’s sentence and a straight probationary sentence with a threat of incarceration upon a violation of the probation. The court held that because this sort of sentence would be a downward departure in the instant case the trial court would have to provide written reasons.
A reverse split sentence is a legal sentence under section 948.01(11), Florida Statutes (1991). However, we cannot accept the argument that a reverse split sentence is exempt from the sentencing guidelines any more than other sentencing options under section 948.01, which dictates when a court may impose sentences of probation and community control. In fact, this Court has made it clear that sentencing alternatives should not be used to thwart the guidelines. Poore v. State, 531 So. 2d 161, 165 (Fla.1988). When the legislature wants to exempt a sentence from the guidelines, it knows how to do it. For example, in section 775.084, Florida Statutes (1991), another statute which covers special sentences, the legislature expressly stated that the section is exempt from the sentencing guidelines. However, such an exemption is not mentioned in section 948.-01(11) or any place else in section 948.01. Thus, it appears that the legislature did not intend for a judge imposing a reverse split sentence to disregard the sentencing guidelines.
In the instant ease, Disbrow’s recommended sentence was seventeen to forty years of incarceration. Yet, the trial judge’s reverse split sentence could spare Disbrow of serving any term of incarceration. The possibility of no incarceration is enough to constitute a downward departure which would require written reasons under the guidelines. Therefore, we answer the certified question in the affirmative and approve the decision below.
It is so ordered.
OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Carder v. State, 642 So. 2d 742 (Fla. 1994)…PLIT SENTENCE A DOWNWARD DEPARTURE FROM THE GUIDELINES WHICH REQUIRES WRITTEN JUSTIFICATIONS? Id. at 967. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. We answered the identical question in Disbrow v. State, 642 So. 2d 740 (Fla.1994), in the affirmative. Accordingly, we approve the decision below. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.…
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State v. Powell, 703 So. 2d 444 (Fla. 1997)…l eliminate the term of incarceration if the defendant complies with the terms of probation. As long as a valid reason for downward departure exists, the supreme court has allowed trial courts to impose this reverse split sentence. Disbrow v. State, 642 So. 2d 740 (Fla.1994). There is no requirement that the conditional period of incarceration be equal in length to the preceding term of probation. Because the conditional suspended sentence does not appear to violate section 948.01(6) and is compatible with t…
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State v. Matthews, 891 So. 2d 479 (Fla. 2004)…bitual offender statute in effect at the time of Matthews’ sentencing expressly states that a sentence imposed under the habitual offender statute is not subject to the sentencing guidelines. See § 775.084(4)(e), Fla. Stat. (1989); Disbrow v. State, 642 So. 2d 740, 741 (Fla.1994); see also Gipson v. State, 616 So. 2d 992, 993 (Fla.1993). As this Court has recognized, “in enacting subsection (4)(e) in 1988 the legislature was attempting to sever application of the habitual offender statute from the sentencing…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Farrington v. State, 626 So. 2d 1123 (Fla. 5th DCA 1993)
- State v. Disbrow, 626 So. 2d 1123 (Fla. 5th DCA 1993)