LEONARDO OROSCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leonardo Orosco pleaded no contest to five counts of sexual battery on a child in a position of authority. The trial court sentenced him to a combination of prison and probation terms, but the probation order created an illegal sentence by suggesting probation applied to all counts rather than only Count VI, exceeding statutory maximums on other counts.
The trial court's oral pronouncement of the sentence on Count VI (10 years prison followed by 20 years probation as a split sentence) was legal. However, the probation order's suggestion that probation applied to all counts resulted in sentences exceeding the statutory maximum on other counts, requiring remand for correction of the illegal sentence.
[1] A trial court's written probation order may not conflict with the oral pronouncement of sentence.
[2] A probationary split sentence consisting of incarceration followed by probation is a legal sentence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court orally sentenced appellant to a probationary split sentence on Count VI. He was sentenced to serve 10 years in the Department of Corrections followed by 20 years probation, which constitutes a legal sentence.”
Establishes that the oral pronouncement of the split sentence on Count VI was legally proper.
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Join FLexlaw to unlock all legal intelligenceOrosco pleaded no contest to five counts of sexual battery on a child while in a position of familial or custodial authority (Counts IV-VIII) in excha…
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PER CURIAM.
Appellant pled no contest to five counts of sexual battery on a child while he was in a position of familial or custodial authority (Counts IV — VIII). In exchange for the plea, the state agreed not to prosecute him on three counts of sexual battery on a child under 12 by a perpetrator 18 or older (Counts I-III).
The trial court adjudicated appellant guilty and sentenced him as follows: Count IV, 17 years in the Department of Corrections; Count V, 17 years in the Department of Corrections to run concurrent with Count IV; Count VI, 10 years in the Department of Corrections followed by 20 years of probation to run consecutive to Count IV; Count VII, 28 years in the Department of Corrections to run concurrent with Count IV; Count VIII, 28 years in the Department of Corrections to run concurrent with Count IV. The trial court ordered appellant to participate in a sex offender treatment program during his incarceration and classified him as a sexual predator based on Counts VII and VIII. At the sentencing hearing, the trial court prohibited appellant from having any contact with the victim, directly or indirectly. In the probation order, the trial court modified the “no-contact” condition by additionally prohibiting appellant from having any contact with the child born as a result of the union between appellant and the victim. The probation order also required appellant to participate in a sex offender treatment program while on probation, which is a statutory condition that is not required to be orally pronounced at sentencing.
None of the issues raised on appeal were properly preserved, but one error results in an illegal sentence requiring remand for correction. See Fla. R.App. P. 9.140(d); Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998).
The trial court orally sentenced appellant to a probationary split sentence on Count VI. He was sentenced to serve 10 years in the Department of Corrections followed by 20 years probation, which constitutes a legal sentence. However, appellant correctly points out that the probation order suggests appellant was sentenced to 20 years probation on all counts, which would result in sentences in excess of the statutory maximum on the other counts. See Soria v. State, 584 So. 2d 1130, 1131 (Fla. 5th DCA 1991).
In all other respects, we affirm.
GLICKSTEIN and GROSS, JJ., and GOLDENBERG, RENEE, Associate Judge, concur.
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Mizell v. State, 716 So. 2d 829 (Fla. 3d DCA 1998)…775.082(4)(a), Fla. Stat. (1997). The state concedes the error but claims that Florida Rule of Appellate Procedure 9.140(d)1 precludes our consideration of the point because it was not raised below. On rebuttal, the defendant cites Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998) for the proposition that an error of this kind is a fundamental one to which, by the terms of the underlying statute, § 924.061, Fla. Stat. (Supp.1996), the rule does not apply. Accord Harriel v. State, 710 So. 2d 102 (Fla. 4th D…
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Gonzales v. State, 816 So. 2d 720 (Fla. 5th DCA 2002)…be imposed for a second degree felony is fifteen years.3 When a defendant is sentenced to a term in prison followed by probation, the combined times must not exceed the statutory maximum. State v. Holmes, 360 So. 2d 380 (Fla.1978); Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998); Soria v. State, 584 So. 2d 1130 (Fla. 5th DCA 1991). Thus, the sentence Gonzales received was illegal because the combined times were thirty years. [*722] The state argues that this sentence was part of a plea bargain and that G…
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Jackson v. State (Fla. 5th DCA 2019)…dant is sentenced to a term in prison followed by probation, the combined times must not exceed the statutory maximum." Gonzales v. State, 816 So. 2d 720, 721 (Fla. 5th DCA 2002) (citing State v. Holmes, 360 So. 2d 380 (Fla. 1978); Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998); Soria v. State, 584 So. 2d 1130 (Fla. 5th DCA 1991)). The statutory maximum sentence for a second-degree felony is fifteen years. See § 775.082(3)(c), Fla. Stat. (1998). Thus, Jackson's original 22-year sentence was illegal.…
Authorities Cited
- Dameion Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998)
- Soria v. State, 584 So. 2d 1130 (Fla. 5th DCA 1991)