KENNETH B. MCCASKILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth McCaskill was originally sentenced to four concurrent twelve-year terms for robbery convictions followed by probation. Upon violation of probation, he was resentenced to fifteen consecutive years on each of the original four convictions. McCaskill appealed, arguing consecutive sentences could not follow concurrent sentences upon probation violation, but the court affirmed, holding that probationary split sentences allow resentencing to any lawful term originally available.
The court held that when a defendant is sentenced to an unsuspended term of incarceration followed by probation (a probationary split sentence), violation of probation authorizes the court to resentence to any lawful term up to the maximum originally available. Consecutive sentences may be imposed upon probation violation even if the original sentences were concurrent, provided the court does not exceed guidelines or statutory maximums.
[1] Upon violation of probation following a probationary split sentence, a defendant may be resentenced to any term up to the maximum which could have been originally imposed…
[2] A probationary split sentence, allowing for resentencing up to the original maximum upon probation violation, is distinct from a 'true split sentence' where only the susp…
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Join FLexlaw to unlock all legal intelligence“when a defendant is sentenced to a term of incarceration, none of which is suspended, to be followed by a period of probation (a probationary split sentence), upon violation of that probation, the defendant may be resentenced to any term up to the maximum which could have been originally imposed”
Establishes the core legal rule that probation violation allows full resentencing discretion within statutory limits
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Join FLexlaw to unlock all legal intelligenceIn 1992, McCaskill was convicted of four robberies and sentenced to four concurrent twelve-year terms followed by three years probation. He was releas…
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ORFINGER, M., Senior Judge.
In 1992, for four robbery convictions, appellant was sentenced to four concurrent terms of twelve years incarceration, to be followed by three years of probation. Released from prison in early 1997, and placed on community control for probation violations, appellant was charged with various violations of community control and probation, and in 1998 admitted the violations and entered a no contest plea to a new robbery charge. He was then sentenced to fifteen years incarceration on each of the four earlier robbery convictions, consecutive to each other, and a concurrent fifteen year term on the last robbery conviction, with credit for time served.1
Appellant contends that he could not legally be given consecutive terms after violation of probation when the original sentences were concurrent, citing Towbridge v. State, 564 So. 2d 604 (Fla. 3d DCA 1990). Towbridge is not in point here. In Poore v. State, 531 So. 2d 161 (Fla.1988), the supreme court made it clear that when a defendant is sentenced to a term of incarceration, none of which is suspended, to be followed by a period of probation (a probationary split sentence), upon violation of that probation, the defendant may be resentenced to any term up to the maximum which could have been originally imposed.2
No contention is made here that the court exceeded the guidelines or the maximum penalty prescribed by law. Violation of appellant’s probation authorized the court to impose any lawful sentence which could have originally been imposed. See Green v. State, 392 So. 2d 333 (Fla. 2d DCA 1981).
AFFIRMED.
COBB and HARRIS, JJ., concur. . The trial court reluctantly went along with the state’s recommendation of a concurrent term on the last robbery, but made it clear, before accepting appellant’s plea on the probation violations that sentencing on those violations was completely in the court’s discretion.
. On the other hand, where defendant is sentenced to a term of incarceration, a portion of which is suspended subject to probation (defined as a "true split sentence”), upon violation of probation defendant can only be confined for the remainder of the suspended portion. Thus, Tow-bridge is inapposite because there, the defendant was given a "true split sentence" and could only be confined, after violation of probation, for the remainder of the suspended portion of his sentence. 564 So. 2d at 605.
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Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000)…e'was improper. Thus'that sentence is reversed and we remand this case for re-sentencing on that count. Finally, Brooks could receive any sentence which the court could have imposed originally with regard to count two. See Poore; McCaskill v. State, 728 So. 2d 1183 (Fla. 5th DCA 1999); Green v. State, 392 So. 2d 333 (Fla. 2d DCA 1981). Therefore, since the offense of possession of a firearm by a convicted felon is a second degree felony, nine years’ incarceration is not an illegal sentence and the sentence is…
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Howells v. State, 16 So. 3d 852 (Fla. 5th DCA 2009)…A 1990) (holding that after revoking defendant’s probation, trial court was required to reimpose original sentences as concurrent, not consecutive, when defendant initially received concurrent “true split sentences”), with [*854] McCaskill v. State, 728 So. 2d 1183 (Fla. 5th DCA 1999) (holding that where defendant was sentenced to probationary split sentence, and violated probation, defendant may be resentenced to any term that could have been originally imposed). REVERSED AND REMANDED. LAWSON, J. and COBB,…
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Coney v. State, 941 So. 2d 592 (Fla. 4th DCA 2006)…, a term of incarceration, none of which is suspended, followed by a period of probation — the defendant may be resentenced to any term up to the maximum which could have been originally imposed upon a violation of probation. See McCaskill v. State, 728 So. 2d 1183 (Fla. 5th DCA 1999). In this case, the July 3, 2002 sentencing order demonstrates that Coney was originally sentenced to probationary split sentences, so that his consecutive sentence was proper under McCaskill. There was no double jeopardy violatio…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Mac Green v. State, 392 So. 2d 333 (Fla. 2d DCA 1981)
- Montgomery v. State, 564 So. 2d 604 (Fla. 3d DCA 1990)