ROBERT C. BURROUGHS, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial judge cannot impose a new period of incarceration exceeding the remaining suspended portion of an original sentence upon a violation of probation.
Appellant was convicted of capital sexual battery and attempted capital sexual battery, and also violated probation on a prior sentence. The original …
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BLUE, Judge.
We affirm the appellant’s convictions and sentences for capital sexual battery and attempted capital sexual battery. We reverse the sentence imposed on the violation of probation charge.
The original sentence on the charge underlying the violation of probation was a “true split sentence” consisting of nine years in prison, with the confinement period suspended after three years and the remaining six years to be spent on probation. See Poore v. State, 531 So. 2d 161 (Fla.1988). Upon the violation of probation, the trial judge could not impose a new period of incarceration which exceeded the remaining balance of the suspended portion of the original sentence. See Poore, 531 So. 2d at 164. Here, on sentencing the appellant for the violation of probation, the court erred by imposing fifteen years’ incarceration. Accordingly, we reverse only the sentence imposed in the violation of probation case (circuit court case no. 90-16556) and remand for resentencing in accordance with Poore. The appellant does not need to be present for the resentencing.
Affirmed in part, reversed in part, and remanded for resentencing on circuit court case no. 90-16556.
ALTENBERND, A.C.J., and NORTHCUTT, J., concur.
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Farran v. State, 694 So. 2d 877 (Fla. 2d DCA 1997)…If the court file contains substantiation of the factual basis, the court may deny the motion by attaching those documents to the order of denial. Depositions or police affidavits have been determined to fulfill this obligation. Washington v. State, 688 So. 2d 416, n. 2 (Fla. 2d DCA 1997). Accordingly, we reverse that portion of the order which relies exclusively on the stipulation of the parties to the factual basis and remand for reconsideration of that issue in light of this decision. On Farran’s other cla…
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Mancino v. State, 689 So. 2d 1235 (Fla. 2d DCA 1997)…cedurally cognizable under rule 3.800(a). See, e.g., Word, 682 So. 2d 642; Hubbard v. State, 667 So. 2d 936 (Fla. 2d DCA 1996). We recently confronted similar situations in White v. State, 688 So. 2d 1005 (Fla. 2d DCA 1997), and Washington v. State, 688 So. 2d 416 (Fla. 2d DCA 1997). As in this case, the trial court in Washington denied a rale 3.800(a) motion attacking the legality of a mandatory three-year minimum sentence for possession of a firearm imposed under section 775.087(2), after determining that s…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)