JOHN G. WARRINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Warrington appeals his sentence imposed after violating community control terms. The court holds that although the original plea agreement included an illegal conditional suspended sentence, Warrington cannot challenge its legality after accepting its benefits, but he is entitled to credit for time served on community control.
A defendant who agreed to an illegal conditional suspended sentence and enjoyed its benefits cannot challenge its legality after accepting those benefits without complaining, but is entitled to credit for time served on community control when the sentence is ultimately imposed.
[1] A defendant who accepts the benefits of a plea agreement and violates its conditions cannot later challenge the legality of the sentence imposed under that agreement.
[2] A defendant is precluded from challenging a sentence as illegal after enjoying the benefits of probation without raising the issue.
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Join FLexlaw to unlock all legal intelligence“once a defendant has enjoyed the benefits of probation without challenging the legality of the sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.”
Establishes the principle that accepting benefits of an illegal sentence waives the right to challenge it later
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Join FLexlaw to unlock all legal intelligenceWarrington violated probation by committing a new offense. He agreed to a plea deal providing suspended sentences conditional on completing community …
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PETERSON, Chief Judge.
John G. Warrington appeals the sentence imposed after he violated the terms of his community control.
Warrington violated the terms of a previous period of probation (the first “sentence”) by committing a new offense. As his second “sentence,” Warrington agreed to a sentence of five terms of five years incarceration suspended on the condition he successfully complete two years community control followed by three years probation. He also agreed to a sentence for the new offense of twelve years incarceration suspended on the condition he successfully complete two years community control followed by thirteen years probation. Warrington violated the terms of the new period of community control, and the court finally committed Warrington to five terms of five years incarceration and one term of twelve years incarceration (the third “sentence”).
Warrington and the state contend that the second sentence imposed pursuant to a plea agreement was a “true split” sentence, as described in Poore v. State, 531 So. 2d 161 (Fla.1988). However, this sentence appears to us to be an illegal, conditional suspended and alternative sentence. See Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992). Cf. Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992); Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA 1993). Although the second sentence may have been illegal, Warrington agreed to this second sentence, enjoyed the benefit of release on community control, and did not complain until after the community control was revoked. The sentence is “illegal” only in the sense that it is not one of the sentences that may be imposed pursuant to Poore and section 948.01, Florida Statutes. The sentence does not violate a statutory maximum, i.e., the terms of incarceration did not violate the statutory máximums for the crimes.
We agree with the court in Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992), that “once a defendant has enjoyed the benefits of probation without challenging the legality of the sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.” Id. at 476 (citing Bashlor v. State, 586 So. 2d 488 (Fla. 1st DCA 1991) (sentences imposed in violation of statutory requirements, which are to benefit of defendant and to which he agreed, may not be challenged after defendant has accepted benefits flowing from the plea, but has failed to carry out the conditions imposed on him)). We also agree with Gaskins that the trial court properly imposed the agreed-upon terms of incarceration.1
Usually, a defendant cannot agree to an illegal sentence, but when the illegal alternative and conditional defects which benefited that defendant are no longer in effect, the terms of incarceration that were agreed upon are valid so long as they are not beyond the statutory máximums for the offenses for which the defendant was convicted. Accordingly, the court properly reimposed the terms of incarceration on Warrington in accordance with the plea agreement.
We reverse and remand for resentencing, however, because the court should have given Warrington credit for the time served on community control. Where a court imposes a sentence after having illegally suspended its imposition, the sentence must be imposed nunc pro tunc the date of adjudication. See Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958), cert. discharged by 110 So. 2d 7 (Fla.), cert. denied, 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959). In the instant case the five year and twelve year sentences were within the statutory máxi-mums for Warrington’s offenses; the court erred only by failing to give credit for the time Warrington spent on community control. This error must be corrected. Accordingly, we remand so that the trial court can amend its judgment to award credit for time served on community control.
SENTENCE AFFIRMED, BUT REMANDED TO AWARD CREDIT.
GOSHORN and HARRIS, JJ., concur. . There is no indication in Bryant that the defendant agreed to the illegal sentence.
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Cited By (12 total)
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State v. Powell, 703 So. 2d 444 (Fla. 1997)…in state or county [*446] jurisdiction. This paragraph does not prohibit any other sanction provided by law. Id. (emphasis added). . We disapprove the following 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…
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LEE v. State, 666 So. 2d 209 (Fla. 2d DCA 1995)…We note that this court has authorized such a sentence as a true split sentence. Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992). The Fifth District has held that such a sentence is an illegal, conditional suspended sentence. Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995). But see Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA 1993) (finding that such a sentence is a true split sentence). In March 1993, Mr. Lee violated community control. At his sentencing hearing in August 1993, the trial court…
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Norton v. State, 691 So. 2d 616 (Fla. 5th DCA 1997)…enjoyed the benefits of his probation [*618] without challenging the legality of his original sentence, he is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation. See Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995). Therefore, the trial court properly imposed the agreed-upon terms of incarceration. We do note the trial court should have given appellant credit for the time served on community control and probation prior to appellant’s violat…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Mussa C. Bateh, 110 So. 2d 7 (Fla. 1959)
- Mussa C. Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958)
- Bashlor v. State, 586 So. 2d 488 (Fla. 1st DCA 1991)
- Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992)
- Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992)
- In re Citroen, 361 U.S. 826 (U.S. 1959)
- Joseph J. Brunetti Constr. Co., Inc. v. Gray, 361 U.S. 826 (U.S. 1959)
- Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA 1993)
- Gerrard D. Jones v. State, 602 So. 2d 694 (Fla. 2d DCA 1992)