MICHAEL S. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court granted Williams's motion for rehearing and vacated his violation of probation sentence, holding that the trial court erred by failing to apply the correct sentencing constraints when the original sentence was a true split sentence. Upon violation of community control, a defendant cannot be sentenced beyond the suspended portion of the original sentence.
The court held that Williams's original sentence was a true split sentence, and upon violation of community control, he could not be sentenced for a term greater than the suspended sentence portion. The maximum incarceration permitted upon resentencing was the remainder of the original suspended sentence (8.3 months) minus jail credits (approximately 123 days), and the trial court erred in adding the two-year probation term.
[1] A true split sentence, upon violation of community control, limits resentencing to a term no greater than the suspended portion of the original sentence.
[2] A defendant cannot be incarcerated for a period exceeding either the guidelines recommendation or the remainder of the original split sentence, whichever is less, upon vi…
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Join FLexlaw to unlock all legal intelligence“Having originally received a true split sentence, Williams, upon violation of his community control, could not be sentenced for a term greater than the term of the suspended sentence.”
Establishes the core holding that violation of community control sentencing is limited by the suspended sentence portion of a true split sentence.
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Join FLexlaw to unlock all legal intelligenceWilliams was convicted of aggravated assault on a fireman (second degree felony) on July 1, 1997. His guideline sentence was 14.32 months. The trial c…
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ON MOTION FOR REHEARING
PER CURIAM.
Michael Steven Williams moves for rehearing of our previous affirmance of the sentence imposed upon violation of probation. We grant the motion for rehearing, withdraw our previous opinion, vacate the sentence and remand for resentencing.
Williams was convicted of aggravated assault on a fireman, a second degree felony, on July 1, 1997. His guideline sentence called for 14.32 state prison months. The original trial court imposed the following sentence: “14.3 months in the Department of Corrections; suspend 8.3 months upon successfully [sic] completion of [2 years] community control.” Williams served six months incarceration and shortly after his release, violated his community control. In resentencing the appellant, the trial court reinstated appellant’s community control with 18 months remaining, and added a two year term of probation. The court also indicated that it was “not imposing the suspended sentence anymore.” Williams complains that the court should have sentenced him for the remaining term of his prison sentence and erred by adding two years probation.
Although the period of community control in appellant’s original sentence was longer than the suspended portion of his incarceration, we interpret this original sentence to be, as urged by appellant, a true split sentence. Evans v. State, 730 So. 2d 768 (Fla. 1st DCA 1999). See also Szuba v. State, 712 So. 2d 839 (Fla. 2d DCA 1998); State v. Powell, 703 So. 2d 444, 445 (Fla.1997) (“Given the different purposes of incarceration and probation, it is not obvious why the length of probation in a true split sentence must always equal the suspended portion of the sentence of incarceration”). Having originally received a true split sentence, Williams, upon violation of his community control, could not be sentenced for a term greater than the term of the suspended sentence. Evans. Moreover, he could not be incarcerated “for any period exceeding either the guidelines recommendation or the remainder of the original split sentence, whichever is less.” Poore v. State, 531 So. 2d 161, 165 (Fla.1988). Here, the lesser incarcerative sentence is the remainder of the original split sentence of 8.3 months, less any credit for time spent in jail awaiting the violation of probation hearing which we believe to be approximately 123 days. We remand for resentencing consistent with the above.
MOTION FOR REHEARING GRANTED; PRIOR DECISION WITHDRAWN; SENTENCE VACATED; REMANDED FOR RESENTENCING.
PETERSON, GRIFFIN and THOMPSON, JJ., concur.
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Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000)…tence. Therefore, the trial court could resentence Brooks on count one to, at most, a period of incarceration not to exceed the suspended portion — in this case four years. See Plejdrup v. State, 754 So. 2d 57 (Fla. 5th DCA 2000); Williams v. State, 747 So. 2d 989 (Fla. 5th DCA 1999). We therefore agree with Brooks that the nine-year sentence he received for count one'was improper. Thus'that sentence is reversed and we remand this case for re-sentencing on that count. Finally, Brooks could receive any sentenc…
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Plejdrup v. State, 754 So. 2d 57 (Fla. 5th DCA 2000)…delines recommendation of a nonstate prison sentence or the remainder of the original six-month suspended sentence, less any credit for time spent in jail awaiting the violation of probation hearing, whichever was less. See Poore; Williams v. State, 747 So. 2d 989 (Fla. 5th DCA 1999). Accordingly, the trial court’s order imposing a twenty-four-month term of incarceration must be reversed and this matter remanded with directions to resentence Mr. Plejdrup within the range of the original six-month suspended se…
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Lovett v. State, 795 So. 2d 1135 (Fla. 5th DCA 2001)…lines, whichever is less. See Poore, 531 So. 2d at 164; Brooks v. State, 762 So. 2d 1011, 1013 (Fla. 5th DCA 2000); Plejdrup v. State, 754 So. 2d 57, 58 (Fla. 5th DCA 2000); Booth v. State, 754 So. 2d 155, 156 (Fla. 5th DCA 2000); Williams v. State, 747 So. 2d 989 (Fla. 5th DCA 1999). We vacate Lovett’s sentence and remand for imposition of a sentence that does not exceed either the guidelines or the suspended portion of the original sentence, whichever is less. SENTENCE VACATED; REMANDED. THOMPSON, C.J.,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Powell, 703 So. 2d 444 (Fla. 1997)
- Evans v. State, 730 So. 2d 768 (Fla. 1st DCA 1999)
- Szuba v. State, 712 So. 2d 839 (Fla. 2d DCA 1998)
- Daniels v. Reeves, 712 So. 2d 839 (Fla. 1st DCA 1998)