KEVIN DENNISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Dennison appeals the trial court's denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court reversed, finding that Dennison's 20-year resentence upon probation violation exceeded the legal maximum—the original sentence of 15 years with credit for time served—and remanded for resentencing.
The court held that when a defendant violates probation on a true split sentence, the maximum permissible incarceration is the full original sentence with credit for time served. The 20-year sentence was illegal because it exceeded 15 years and the 20-year sentence for the second-degree felony exceeded the statutory maximum for that offense.
[1] A claim that a sentence exceeds the suspended portion of a true split sentence is cognizable in a motion to correct an illegal sentence.
[2] When a defendant violates the probationary portion of a true split sentence, the maximum incarceration that can be legally imposed is the full original sentence with cred…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When a defendant violates the probationary portion of a true split sentence, the maximum amount of incarceration the trial court can legally impose is the full original sentence of incarceration with credit for time served.”
Establishes the controlling legal standard for resentencing following probation violation on a split sentence
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Join FLexlaw to unlock all legal intelligenceIn 1993, Dennison pleaded guilty to two counts of attempted capital sexual battery (first-degree felonies) and one count of lewd and lascivious act up…
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DAVIS, Judge.
Kevin Dennison challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the order of the trial court and remand for resentencing.
In 1993 Dennison pleaded guilty to two counts of attempted capital sexual battery, a first-degree felony, and to one count of a lewd and lascivious act upon a child, a second-degree felony. Dennison was originally sentenced concurrently on all counts to fifteen years’ prison suspended after ten years with the balance to be served on probation. In 1999 Dennison violated his probation and was sentenced to twenty years’ prison concurrent on all counts. On the written sentences, the trial court did not check the box awarding Den-nison credit for all time served in prison on each count prior to resentencing. In his rule 3.800(a) motion, Dennison alleged that his sentences are illegal because théy exceed the suspended portions of the sentences. This claim is cognizable in a rule 3.800(a) motion to correct illegal sentence. See Williams v. State, 780 So. 2d 244 (Fla. 2d DCA 2001).
Dennison was sentenced on each count to a true split sentence. See Poore v. State, 531 So. 2d 161 (Fla.1988). When a defendant violates the probationary portion of a true split sentence, the maximum amount of incarceration the trial court can legally impose is the full original sentence of incarceration with credit for time served. See Williams, 780 So. 2d 244; Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000). Thus, in the present case, the most the trial court could have sentenced Denni-son to was fifteen years in prison concurrent on each count with credit for time served in prison and jail. We also note that Dennison’s twenty-year sentence for a lewd and lascivious act is in excess of the statutory maximum for a second-degree felony. Accordingly, we reverse the order of the trial court and remand with instructions to the trial court to resentence Den-nison to no more than fifteen years’ prison on each count with credit for time served.
Reversed and remanded with instructions.
ALTENBERND, A.C.J., and NORTHCUTT, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Swain v. State, 842 So. 2d 858 (Fla. 2d DCA 2003)…now exceed the suspended portion of the initial sentence. See Poore v. State, 531 So. 2d 161, 164 (Fla.1988). Thus, in these cases, Mr. Swain cannot be sentenced in excess of three years, with credit for time actually served. See Dennison v. State, 801 So. 2d 209 (Fla. 2d DCA 2001). Second, case numbers 94-10608, 95-16854, 97-2544, and 97-11113 were properly scored on a 1994 scoresheet. Thereafter, the trial court imposed the sentences in the 1997 cases consecutive to the sentences in the 1994 and 1995 case…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)
- Hunter v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)
- Williams v. State, 780 So. 2d 244 (Fla. 2d DCA 2001)