JULIUS GONZALES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Julius Gonzales appealed his revoked probation sentence, which when combined with his previously served probation exceeded the statutory maximum of fifteen years for lewd assault. The Fourth District reversed, holding that the total sentence imposed upon probation revocation cannot exceed the statutory maximum, and certified a conflict with the Fifth District's contrary approach.
The court held that a sentence imposed upon revocation of probation is illegal if it exceeds the maximum punishment provided by statute when added to the probationary period already served. The appellate court declined to follow the Fifth District's contrary holding and certified the conflict.
[1] A split sentence imposed upon revocation of probation cannot exceed the statutory maximum sentence for the original offense.
[2] Upon revocation of probation, sentencing options are restricted to those available for the original charge.
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Join FLexlaw to unlock all legal intelligence“the new sentence is illegal because it exceeds the maximum punishment provided by law”
Establishes the core holding that sentences upon probation revocation cannot exceed statutory maximums
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Join FLexlaw to unlock all legal intelligenceIn 1982, Gonzales was convicted of lewd assault and sentenced to fifteen years' probation. After successfully serving ten years of probation, his prob…
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PER CURIAM.
In 1982, the appellant was convicted of lewd assault and was sentenced to fifteen years’ probation. After he had successfully served ten years of this probationary term, his probation was revoked for a violation involving new criminal charges. The appellant was given a split sentence of an additional seven years’ incarceration to be followed by three years’ probation. This new sentence, when added to the probationary period already served, exceeds the maximum sentence of fifteen years permitted for lewd assault. §§ 800.04(3), 775.082(3)(c), Fla.Stat. (1981).
The appellant filed a motion to correct his sentence, claiming that he should have received credit for the ten years he had already served on probation. The circuit court denied the motion, and this appeal followed. While the appellant is not entitled to credit for the entire ten year period under Florida Statutes Section 948.06(2), the new sentence is illegal because it exceeds the maximum punishment provided by law.
Under State v. Holmes, 360 So. 2d 380, 383 (Fla.1978), the total term of a split sentence imposed upon conviction cannot exceed the maximum provided by statute, and upon revocation of probation, the sentencing options are restricted to any sentence that could have been imposed on the original charge. The fifth' district recently held that after revocation of probation a trial court is iree to impose a split sentence that exceeds the statutory maximum when added to the time served on probation prior to violation, provided that the probationary portions of the sentence do not exceed the statutory maximum. Phillips v. State, 651 So. 2d 203 (Fla. 5th DCA 1995). Under Phillips, a defendant could not be sentenced to a purely probationary sentence that exceeds the statutory maximum by a single day, but he could be given a split sentence that effectively doubles the maximum sentence by imposing a term of probation that meets the maximum followed by another maximum term of imprisonment.
Because we cannot reconcile this result with Holmes, we decline to follow Phillips, and certify the conflict. The order below is reversed and the case is remanded for imposition of a sentence that does not exceed the maximum provided for by statute when added to the term of probation already served.
FARMER, KLEIN and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Meader v. State, 665 So. 2d 344 (Fla. 4th DCA 1995)…ppellant’s attempt to credit time on probation and community control against his post revocation incarceration is dissonant with both Waters and section 948.06(1), (2), Florida Statutes (1993). Our holding here is consistent with Gonzales v. State, 658 So. 2d 1091 (Fla. 4th DCA 1995), cited by Appellant. Convicted of a second degree felony, the defendant in Gonzales was sentenced to fifteen years of probation. After successfully serving ten years of this term, his probation was revoked and he was sentenced to…
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Jones v. State, 664 So. 2d 1116 (Fla. 4th DCA 1995)…y, 658 So. 2d 983 (Fla.1995). Appellant claims that his total split sentence exceeds the statutory maximum by five years, and is therefore illegal. If the appellant’s position is correct, the sentence is an illegal split sentence. Gonzales v. State, 658 So. 2d 1091 (Fla. 4th DCA 1995); Weidner v. State, 559 So. 2d 705 (Fla. 4th DCA 1990). Appellant’s agreement to the thirty-five year sentence as part of his plea bargain did not waive any illegality. Larson v. State, 572 So. 2d 1368, 1371 (Fla. 1991) (defendant…
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Russell v. State, 676 So. 2d 1026 (Fla. 3d DCA 1996)…ding in this case is apparently in conflict with the Second District decision in Jones v. State, although consistent with the Second District holding in Moody v. State. Defendant also suggests that our holding is in conflict with Gonzales v. State, 658 So. 2d 1091 (Fla. 4th DCA 1995). Gonzales involved a split sentence imposed after revocation of probation, whereas in the present case the trial court imposed solely incarceration after revocation of probation. We conclude that Gonzales does not apply to the pr…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Phillips v. State, 651 So. 2d 203 (Fla. 5th DCA 1995)