WILLIAM B. EVANS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court erred in imposing a new sentence after a probation violation when the original sentence was a true split sentence.
The defendant was originally sentenced to a split sentence for burglary. After violating probation, a different judge imposed a new sentence of 17 yea…
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COBB, Judge.
The defendant appeals from the denial of his motion for correction of an illegal sen tence.1 The denial was predicated on the fact that this court had affirmed the sentence on direct appeal. See Evans v. State, 660 So. 2d 300 (Fla. 5th DCA 1995).
Because we have determined from the record now provided to us that the sentence is illegal, we vacate the sentence and remand for entry of a corrected sentence.
The defendant was originally sentenced for the offense of burglary of a conveyance while armed, to 17 years with the Department of Corrections, with 8 years of the sentence to be suspended upon completion of five years probation. After serving approximately one year in prison, the defendant was placed on controlled release without supervision by the DOC and began serving his probation.
The defendant eventually violated his probation and appeared before a different judge for disposition. The defendant was then sentenced to 17 years imprisonment, with credit for time served.
This was error. See Poore v. State, 531 So. 2d 161 (Fla.1988). The defendant was originally sentenced to a true split sentence. Upon violation of the probationary portion of this suspended sentence, the trial court could only order incarceration for the period of the suspended portion of the original sentence, here 8 years. Poore. The fact that the defendant did not serve the full 9 years of the inearcerative portion of the sentence due to an administrative decision of the DOC does not alter the fundamental principles set out in Poore.
Sentence Vacated; Cause Remanded.
W. SHARP and HARRIS, JJ., concur. . The defendant actually filed a motion for post-conviction relief but at the hearing the trial court treated the motion pursuant to Florida Rule of Criminal Procedure 3.800.
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Citator
Cited By
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Lawton v. State, 711 So. 2d 142 (Fla. 2d DCA 1998)…d at 886; Silva v. State, 602 So. 2d 694 (Fla. 2d DCA 1992). Relief is available to aggrieved 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, impermis…
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Lovett v. State, 795 So. 2d 1135 (Fla. 5th DCA 2001)…Poore v. State, 531 So. 2d 161, 164 (Fla.1988).1 When Lovett violated probation after having served the first five years in prison, the trial court illegally sentenced him to eight years in the Department of [*1136] Corrections. See Evans v. State, 703 So. 2d 1130, 1131 (Fla. 5th DCA 1997). When a true split sentence is imposed, the trial court is deemed to have considered the possibility of a violation of probation and cannot alter the sentence upon the violation. See Poore 531 So. 2d at 164; North Carolina…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995)
- Evans v. State, 660 So. 2d 300 (Fla. 5th DCA 1995)