LARRY C. LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry C. Lee appeals his 22-year sentence imposed for a fourth violation of community control, arguing he should be limited to 17 years based on an earlier suspended sentence. The Second District affirmed, holding that Lee waived his right to enforce the earlier sentence by failing to appeal it and accepting the benefit of community control instead.
The trial court was permitted to impose the 22-year sentence because Lee failed to appeal the August 1993 sentence and thereby waived his right to enforce the earlier 17-year split sentence by accepting the benefit of community control.
[1] A defendant waives the right to enforce an earlier true split sentence by accepting the benefit of subsequent community control.
[2] A defendant who fails to appeal a sentence imposing community control waives the right to challenge that sentence on appeal.
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Join FLexlaw to unlock all legal intelligence“By accepting the benefit of community control, he waived his right to enforce the earlier true split sentence.”
Establishes the core holding that Lee's acceptance of community control as an alternative to the earlier suspended sentence constituted a waiver of his right to challenge the later sentence based on the prior disposition.
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Join FLexlaw to unlock all legal intelligenceLee pleaded nolo contendere to burglary, false imprisonment, and sexual battery and received 5 years' probation in June 1992. In January 1993, after v…
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ALTENBERND, Judge.
Larry C. Lee appeals the sentence imposed on his fourth violation of probation or community control. We conclude that because he did not receive the detriment of an earlier true split sentence, and did not appeal a second true split sentence, the trial court was permitted to impose the remainder of the second true split sentence.
Mr. Lee pleaded nolo contendere to burglary, false imprisonment, and sexual battery with slight force. The charges arose from a serious domestic dispute. In June 1992, he received 5 years’ probation for the burglary and time served for the other two offenses. This disposition was a stipulated downward departure.
In October 1992, he violated probation. As a result, in January 1993, he was sentenced to 17 years’ imprisonment; however, the entire sentence was suspended, and Mr. Lee was placed on community control. 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 did not impose the 17-year sentence that it had previously suspended. Instead, the trial court imposed 22 years of imprisonment and again suspended the entire sentence, placing Mr. Lee on 21 months’ community control, followed by 5 years’ probation. Mr. Lee did not appeal this sentence. The 22-year term of imprisonment was within the recommended range on the guidelines scoresheet because of the previous violations of probation.
Finally, in March 1994, Mr. Lee again violated his community control. The trial court sentenced him to 22 years’ imprisonment. In this appeal, Mr. Lee argues that he can be imprisoned for only 17 years because of the sentence imposed in January 1993.
The flaw in Mr. Lee’s argument is his failure to appeal the August 1993 sentence when it was initially imposed. If he had done so, we would have reversed the sentence and remanded for resentencing. See Cooper v. State, 553 So. 2d 1371 (Fla. 2d DCA 1989). At that resentencing, however, he could have received 17 years in prison rather than community control. By accepting the benefit of community control, he waived his right to enforce the earlier true split sentence. Ulmer v. State, 619 So. 2d 443 (Fla. 2d DCA 1993); Bashlor v. State, 586 So. 2d 488 (Fla. 1st DCA 1991), review denied, 598 So. 2d 75 (Fla.1992).
We note that the conflict between this district and the Fifth District does not affect the result in this case. Under the Fifth District’s reasoning, both conditional suspended sentences would have been illegal, and Mr. Lee’s final 22-year sentence would have been the first legal sentence imposed since the initial downward departure. Thus, the reasoning employed by the Fifth District would also result in an affirmance in this case.
Affirmed.
PARKER, A.C.J., and QUINCE, J., concur.
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Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)…dit for time served. Affirmed. PATTERSON, C.J., and CASANUEVA, J., Concur. . We also reject Mr. Crews’ contention that the sentence was an illegal departure sentence. See Wilcox v. State, 625 So. 2d 920 (Fla. 1st DCA 1993). See also Lee v. State, 666 So. 2d 209 (Fla. 2d DCA 1995). . For example, in Mr. Crews’ case, if his offense had been committed prior to 1989, the trial judge would have been limited to imposing a 15!4-year sentence, or a 20-year sentence with credit of 4¡4 years’ time served, even if M…
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Lawton v. State, 711 So. 2d 142 (Fla. 2d DCA 1998)…ved prisoners from these illegal sentences by means of rule 3.800(a) motions. See Johnson v. State, 641 So. 2d 970 (Fla. 2d DCA 1994); see also Evans v. State, 703 So. 2d 1130 (Fla. 5th DCA 1997). The trial court erroneously relied on Lee v. State, 666 So. 2d 209 (Fla. 2d DCA 1995), to deny Lawton relief. In Lee, the trial court, in a proceeding before imposing the challenged prison sentence of twenty-two years, impermissibly placed Lee on probation for twenty-two years after he had violated the terms of sup…
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State v. McEACHERN, 700 So. 2d 1 (Fla. 5th DCA 1997)…ded is authorized as a true split sentence under Poore. See, e.g., Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA 1993); Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992). See also Jefferson v. State, 677 So. 2d 29 (Fla. 1st DCA 1996); Lee v. State, 666 So. 2d 209 (Fla. 2d DCA 1995). The Florida Supreme Court has recently issued two opinions concerning the definition of the term “illegal sentence.” See Davis v. State, 661 So. 2d 1193 (Fla.1995) and State v. Callaway, 658 So. 2d 983 (Fla.1995). Both cases dea…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bashlor v. State, 586 So. 2d 488 (Fla. 1st DCA 1991)
- Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995)
- Helton v. State, 611 So. 2d 1323 (Fla. 1st DCA 1993)
- Gerrard D. Jones v. State, 602 So. 2d 694 (Fla. 2d DCA 1992)
- Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992)
- Cooper v. State, 553 So. 2d 1371 (Fla. 2d DCA 1989)
- Ulmer v. State, 619 So. 2d 443 (Fla. 2d DCA 1993)