STATE OF FLORIDA, APPELLANT,
v.
TERRI ANN CONTE, APPELLEE
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The court held that the imposed sentence, which combined community control and probation after suspending an upward departure sentence, was not a legally permissible sentencing alternative under Florida law.
Appellee was convicted of robbery with a firearm and faced a recommended sentencing range. The judge imposed an unauthorized upward departure sentence…
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DAUKSCH, Judge.
This is an appeal from a downward departure sentence.
Appellee was convicted of robbery with a firearm. This is a first degree felony punishable by life imprisonment. Based upon the sentencing guidelines scoresheet, appellee faced a recommended range of 3⅛ to 4½ years imprisonment and the judge was permitted to sentence within a range of 2⅜ to 5½ years imprisonment.
The judge sentenced appellee to ten years imprisonment, an unauthorized upward departure, from which appellee waived the right to appeal, and “suspended” that sentence on the condition that she spend two years in community control, followed by five years probation. The latter sentence is a downward departure.
The state appeals the downward departure because the reasons given are not legally adequate. While we agree we are not con vinced that the reasons given are substantial enough to warrant the departure, see Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986), we are more impressed with the fact that this innovative sentence is violative of Poore v. State, 531 So. 2d 161 (Fla.1988). Poore held
... a judge has five basic sentencing alternatives in Florida: (1) a period of confinement; (2) a “true split sentence” consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion; (3) a “probationary split sentence” consisting of a period of confinement, none of which is suspended, followed by a period of probation; (4) a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and (5) straight probation.
Id. at 164. The sentence here, as was the sentence in State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992), must be vacated because it is not an alternative permitted by Poore.
. SENTENCE VACATED; REMANDED FOR RESENTENCING.
COBB and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Powell, 703 So. 2d 444 (Fla. 1997)…g cases to the extent they are inconsistent with our opinion today: Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995); State v. Davis, 657 So. 2d 1224 (Fla. 5th DCA 1995); State v. Farthing, 652 So. 2d 1290 (Fla. 5th DCA 1995); State v. Conte, 650 So. 2d 192 (Fla. 5th DCA 1995); Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992). We note that the district court in Powell certified conflict with State v. McEachern, 700 So. 2d 1 (Fla. 5th DCA 1997). We have now quashed McEachern. McEachern v. State, 701…
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State v. Verl Lamar Davis, 657 So. 2d 1224 (Fla. 5th DCA 1995)…Id. at 164. The sentences imposed by the trial court in this case are not among the alternatives listed in Poore. This court recently reversed as illegal a similar sentence which was imposed by the same trial judge in this case. See State v. Conte, 650 So. 2d 192 (Fla. 5th DCA 1995) (reversing 10-year sentence which trial court suspended conditioned upon defendant’s successful completion of two years community control, followed by five years probation), review denied, 659 So. 2d 270 (Fla.1995). Additionally,…
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State v. McEACHERN, 700 So. 2d 1 (Fla. 5th DCA 1997)…nce categories enunciated by the Florida Supreme Court in Poore v. State, 531 So. 2d 161 (Fla.1988). We have previously held this type of pure suspended sentence to be illegal. See State v. Davis, 657 So. 2d 1224 (Fla. 5th DCA 1995); State v. Conte, 650 So. 2d 192 (Fla. 5th DCA), review denied, 659 So. 2d 270 (Fla.1995); State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992); Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992); and Pinardi v. State, 617 So. 2d 371 (Fla. 5th DCA 1993). We recognize that the Fir…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986)
- State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992)