RICHARD THOMAS CHAPPEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence imposed for the probation violation was illegal because it exceeded the original suspended sentence term.
Richard Chappel pleaded nolo contendere to grand theft and received a suspended prison sentence with probation. After violating probation, the trial c…
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PER CURIAM.
Richard Chappel appeals an order of the trial court revoking his probation and sentencing him to concurrent terms of four and one half years in prison for two counts of grand theft. Because we find Chappel’s sentences to be illegal, we reverse.
On July 19, 1994, Chappel pled nolo contendere to two counts of grand theft and was sentenced to four years in prison, which was suspended in favor of three years probation. An affidavit of violation of probation was filed on October 26,1998.1 After a hearing on the affidavit, the trial court revoked Chappel’s probation and sentenced him to concurrent terms of four and one half years in prison for the two grand theft charges.
We conclude that the maximum sentence Chappel could receive for a violation of his probation was four years in prison. Because the original sentence was a true split sentence as defined in Poore v. State, 531 So. 2d 161 (Fla.1988), Chappel could not be sentenced on a subsequent violation of probation for a term greater than the term of the suspended sentence. See also Stoutamire v. State, 734 So. 2d 468, 469 (Fla. 1st DCA 1999)(noting that “double jeopardy considerations preclude a trial court from imposing a sentence following revocation of the probationary portion of a ‘true split sentence’ that exceeds the suspended portion of the original sentence”). The sentence imposed by the trial court in this case exceeds the suspended sentence by six months. This sentence is illegal. See Stoutamire; Lawton v. State, 711 So. 2d 142 (Fla. 2d DCA 1998), on appeal following remand, 731 So. 2d 60 (Fla. 2d DCA 1999); Hopping v. State, 708 So. 2d 263 (Fla.1998). Therefore, we reverse and remand for resentencing.
JOANOS, WEBSTER and PADOVANO, JJ., CONCUR. . An earlier affidavit of violation of probation resulted in the trial court restoring Chappel’s probation and ordering him to serve six months in jail.
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Chappell v. State, 763 So. 2d 1259 (Fla. 1st DCA 2000)…appeals an order of the trial court denying his 3.800(a) Motion to Correct Illegal Sentence. This court has recently reversed as illegal, and remanded for resentencing, the very sentence that Chappell challenged in his motion. See Chappel v. State, 746 So. 2d 574 (Fla. 1st DCA 1999). Therefore, we DISMISS as moot this appeal without prejudice to Chappell’s right to file a new 3.800(a) motion after resentencing should he be able to satisfy the requirements of Baker v. State, 714 So. 2d 1167, 1167 n. 1 (Fla. 1…
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Green v. State, 4 So. 3d 44 (Fla. 1st DCA 2009)…164 (Fla.1988). He argues that, since a true split sentence was imposed, upon his subsequent violation of probation in 2006 he could not be sentenced to a term greater than the term of the suspended sentence, which was 131 months. Chappel v. State, 746 So. 2d 574 (Fla. 1st DCA 1999). The State correctly concedes that the trial court erred in the sentence imposed on violation of probation and that we must remand this case for resentencing. [Wjhen a sentencing court imposes a true split sentence, the judge h…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Darin S. Hopping v. State, 708 So. 2d 263 (Fla. 1998)
- Lawton v. State, 731 So. 2d 60 (Fla. 2d DCA 1999)
- Lawton v. State, 711 So. 2d 142 (Fla. 2d DCA 1998)
- Stoutamire v. State, 734 So. 2d 468 (Fla. 1st DCA 1999)