MAXIMILIANO HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a successive motion for postconviction relief is barred if it fails to allege new grounds, and the sentence imposed upon probation violation was permissible.
Defendant was sentenced, violated probation twice, and received a longer sentence. He filed a motion claiming the second sentence was illegal because …
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PER CURIAM.
Maximiliano Hernandez appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.800.
After conviction in circuit court case number 91-34449, on March 18, 1992, defendant-appellant was sentenced to a term of 12 years in state prison followed by three years probation. After violating his probation a second time, on June 21, 1994, the trial court sentenced defendant to 20 years in state prison followed by 10 years probation.
After filing three motions for postconviction relief, on May 17, 1999, defendant filed his fourth motion for postconviction relief claiming that the June 1994 sentence is illegal because it exceeds the probationary portion of defendant’s original sentence. The motion was denied and this appeal followed. We affirm.
First, this (fourth) request for postcon-viction relief is barred. See Zeigler v. State, 632 So. 2d 48, 51 (Fla.1993) (“‘A successive motion [for post-conviction relief] may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an abuse of process.’ ”) (citation omitted). Second, the June 1994 sentence is not an impermissible sentence and the trial court was permitted to impose a sentence greater than 3 years. The original sentence was a “probationary split sentence” (not a “true split sentence”) consisting of a period of confinement followed by a period of probation. See Poore v. State, 531 So. 2d 161, 164 (Fla.1988). Under these circumstances, upon violation of defendant’s probation, the trial court was permitted to impose any sentence it might have imposed at the time of the initial sentence, with credit for time served and subject to the guidelines recommendation. Id. Assuming, without deciding, that a claim of this type can be raised by a Rule 3.800(a) motion, the claim is without merit.
Affirmed.
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Brown v. State, 826 So. 2d 1101 (Fla. 5th DCA 2002)…ied the defendant’s motion [*1102] because the defendant was originally sentenced to a “probationary split sentence” and upon violation of probation, the trial court could impose any sentence it originally could have imposed. See Hernandez v. State, 740 So. 2d 1245 (Fla. 3d DCA 1999); see also Poore v. State, 531 So. 2d 161 (Fla.1988). AFFIRM. THOMPSON, C.J., and SAWAYA, J., concur.…
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Lyndell A. Ward v. State, 865 So. 2d 669 (Fla. 4th DCA 2004)…decision in Lacey v. State, 831 So. 2d 1267 (Fla. 4th DCA 2002), with which today’s decision conflicts. For that reason, the trial judge was free to exceed youthful offender limits when defendant violated his probation. See also Hernandez v. State, 740 So. 2d 1245 (Fla. 3d DCA 1999) (upon violation of defendant’s probation, trial court was permitted to impose any sentence it might have imposed at the time of the initial sentence). Second, even if the above were not applicable the right to youthful offender s…
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Eugenio Diaz v. State, 770 So. 2d 1290 (Fla. 3d DCA 2000)…e revocation of the community control portion of the sentence, the trial court could have imposed any sentence it originally could have imposed, with credit for time served. See Poore v. State, 531 So. 2d 161 (Fla.1988); see also Hernandez v. State, 740 So. 2d 1245 (Fla. 3d DCA 1999); Diaz, therefore, is entitled to credit for time served in prison against the prison sentence imposed upon the revocation of the community control portion of his probationary split sentence. We, therefore, reverse and remand with…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Zeigler v. State, 632 So. 2d 48 (Fla. 1993)