WALTER COLLADO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Walter Collado appeals an order denying his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court reversed, finding that his split sentence of five years incarceration followed by one year of probation as a youthful offender violated Florida's sentencing statutes, which limit state prison incarceration to no more than four years for such split sentences.
The court held that the five-year incarceration term followed by one year of probation is an illegal sentence for a youthful offender in state prison. Under Florida Statutes § 958.04(2)(c), split sentences for state prison incarceration are limited to no more than four years followed by up to two years of probation. The defendant may raise this issue despite agreeing to the sentence in a plea bargain.
[1] A split sentence for a youthful offender, where the incarceration is to be served in state prison, cannot exceed four years of incarceration followed by up to two years o…
[2] A youthful offender may be committed to the custody of the department for a period of not more than six years, provided the commitment does not exceed the maximum sentenc…
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Join FLexlaw to unlock all legal intelligence“the incarceration period is to be served in a department facility other than a probation and restitution center or community residential facility, such period shall be for not less than 1 year or more than 4 years”
This quote from the sentencing statute establishes the maximum incarceration period permitted for split sentences in state prison for youthful offenders.
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Join FLexlaw to unlock all legal intelligenceCollado received a split sentence of five years in state prison followed by one year of probation pursuant to a plea bargain. He was sentenced as a yo…
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COPE, J.
Walter Collado appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse.
Pursuant to a plea bargain, defendant-appellant Collado was given a split sentence of five years incarceration followed by one year of probation.1
So far as pertinent here, the youthful offender sentencing options are as follows:
(c) The court may impose a split sentence whereby the youthful offender is to be placed on probation or community control upon completion of any specified period of incarceration; however, if the incarceration period is to be served in a department facility other than a probation and restitution center or community residential facility, such period shall be for not less than 1 year or more than 4 years. The period of probation or community control shall commence immedi ately upon the release of the youthful offender from incarceration. The period of incarceration imposed or served and the period of probation or community control, when added together, shall not exceed 6 years.
(d) The court may commit the youthful offender to the custody of the department for a period of not more than 6 years, provided that any such commitment shall not exceed the maximum sentence for the offense for which the youthful offender has been convicted. Successful participation in the youthful offender program by an offender who is sentenced as a youthful offender by the court pursuant to this section, or is classified as such by the department, may result in a recommendation to the court, by the department, for a modification or early termination of probation, community control, or the sentence at any time prior to the scheduled expiration of such term. When a modification of the sentence results in the reduction of a term of incarceration, the court may impose a term of probation or community control which, when added to the term of incarceration, shall not exceed the original sentence imposed.
§ 958.04(2)(c), (d), Fla.Stat. (Supp.1998).2
Where, as here, the incarceration is to be served in state prison, the split sentence may be for no more than four years incarceration, followed by up to two years probation.3 Alternatively, the trial court may sentence a youthful offender to six years of incarceration.
Defendant is correct that a term of five years incarceration in state prison as a youthful offender, followed by one year of probation, is an illegal sentence. See id. § 958.04(2)(c); Riley v. State, 407 So. 2d 967, 968 (Fla. 2d DCA 1981); 15 Fla.Jur.2d Criminal Law § 2999 (1993). Defendant may raise this issue even though he agreed to the sentence as part of a plea bargain. See King v. State, 681 So. 2d 1136, 1140 (Fla.1996); Larson v. State, 572 So. 2d 1368, 1371 (Fla.1991); Williams v. State, 500 So. 2d 501, 503 (Fla. 1986), receded from on other grounds, Quarterman v. State, 527 So. 2d 1380 (Fla.1988).
We reverse the order now under review and remand for resentencing within legal limits,4 or alternatively to allow defendant to withdraw his plea.
We suggest that the legislature revise section 958.04(2)(c), Florida Statutes, to allow greater flexibility in split sentencing.5 It is hard to see why the trial court should not have been able to impose the sentence it did in this case.
Reversed and remanded for further proceedings consistent herewith.
. One of the sentencing orders incorrectly states that the one-year period was to be served on community control. The oral pronouncement, and separately-entered probation order, provide for one year of probation.
. The offense date was February 1, 1999.
. Not at issue here is placement in a probation and restitution center or community residential facility. The time limit for such a placement is 364 days. Id. § 958.04(2)(b); see State v. Davis, 721 So. 2d 1243 (Fla. 4th DCA 1998).
. The choices include leaving the sentence at five years and striking the one-year probationary term, id. § 958.04(2)(d), or resentencing defendant to four years followed by two years of probation. Id. § 958.04(2)(c),(d).
. This could be accomplished by striking from section 958.04(2)(c) the phrase “or more than 4 years.”
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Terrius Render v. State, 802 So. 2d 512 (Fla. 3d DCA 2001)…ssible. The fact that the defendant, with the advice of counsel, waived credit for time served does not render the sentence “illegal.” [*514] The defendant contends that this procedure runs afoul of such decisions as Louissaint and Collado v. State, 776 So. 2d 355 (Fla. 3d DCA 2001). That is not so. In those cases, the sentence actually imposed by the trial court exceeded the legal maximum. The sentences imposed in the present case are within the legal maximum, and the waiver of credit for time served is auth…
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Bryant v. State, 944 So. 2d 1016 (Fla. 3d DCA 2006)…ime.” Fla. R.Crim. P. 3.850(b). Thus, when such a claim is made under Rule 3.850, it is not subject to any time limit. Id. That is so even where a sentence which exceeds the legal maximum was imposed pursuant to a plea bargain. See Collado v. State, 776 So. 2d 355, 356 (Fla. 3d DCA 2001), and eases cited therein. On the merits, however, we affirm. The defendant is incorrect in believing that his sentence exceeds the legal maximum. The defendant entered into a plea agreement in 1979 whereby he pled guilty in…
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Sonnfred Baptiste v. State, 791 So. 2d 1254 (Fla. 3d DCA 2001)…of five years incarceration followed by one year of community control. The State acknowledges that the inearcerative period for a split youthful offender sentence cannot exceed four years. § 958.04(2)(c), (d), Fla. Stat. (1999) * ; Collado v. State, 776 So. 2d 355, 356 (Fla. 3d DCA 2001). We reverse the order now under review and remand for resentencing within legal limits, or alternatively to allow defendant to withdraw his plea and proceed to trial. Collado, 776 So. 2d at 356. Reversed and remanded for fu…
Authorities Cited
- THE Florida BAR v. Mullins, 527 So. 2d 1380 (Fla. 1988)
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- King v. State, 681 So. 2d 1136 (Fla. 1996)
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Riley v. State, 407 So. 2d 967 (Fla. 2d DCA 1981)
- State v. Cleveland Davis, 721 So. 2d 1243 (Fla. 4th DCA 1998)