BRIAN LESTER WARDLAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Wardlaw challenges a thirty-year prison sentence imposed upon violation of probation, arguing the trial court improperly imposed an upward departure sentence despite the original sentence being a true split sentence. The court agrees and reverses, holding that without explicit agreement in the original plea, a defendant cannot be sentenced beyond the guidelines upon probation revocation.
The court held that upon revocation of a true split sentence, a defendant can be sentenced to at most the balance of the suspended portion, limited by sentencing guidelines. Without specific agreement in the original plea recognizing the possibility of an above-guidelines sentence upon probation violation, any term beyond the guidelines requires departure reasons and constitutes an improper upward departure.
[1] A true split sentence occurs when a trial judge sentences a defendant to incarceration, suspends a portion of that term, and places the defendant on probation for a perio…
[2] Upon revocation of probation following a true split sentence, the court's sentencing options are limited to the remaining balance of the withheld or suspended portion of…
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Join FLexlaw to unlock all legal intelligence“the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence”
Establishes the core limitation on sentencing upon probation revocation in a true split sentence
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Join FLexlaw to unlock all legal intelligenceWardlaw entered a plea agreement and was originally sentenced to thirty years imprisonment, with seven years to be served and twenty-three years suspe…
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CASANUEVA, Judge.
Following the imposition of a thirty-year prison sentence for a violation of probation for attempted capital sexual battery, Brian Lester Wardlaw contends that, because he did not agree to a departure sentence at his original sentencing, the court improperly imposed an improper upward departure. Based upon Poore v. State, 531 So. 2d 161 (Fla.1988); Lawrence v. State, 682 So. 2d 582 (Fla. 5th DCA 1996); and Jenigen v. State, 801 So. 2d 156 (Fla. 2d DCA 2001), we agree and reverse.
After entering into a plea agreement Mr. Wardlaw was originally sentenced to thirty years’ imprisonment to be suspended after service of seven years. The balance of twenty-three years was to be served on probation. In 2000, Mr. Ward-law admitted violating probation and was sentenced to thirty years’ imprisonment with credit for the time he had previously served. He later filed a motion to correct the sentence and argued that, because his original sentence was a true split sentence, the trial court could not sentence him in excess of the applicable guidelines. The trial court denied the motion on the basis that the sentence was legal because it flowed from a negotiated plea. We apply the de novo standard of review to this issue of law. Demps v. State, 761 So. 2d 302 (Fla.2000).
A true split sentence occurs when a trial judge sentences a defendant to incarceration but suspends a portion of that term of imprisonment and places the defendant on probation for a term equal to the suspended portion. Franklin v. State, 545 So. 2d 851 (Fla.1989). Upon revocation of probation, the court’s sentencing options are limited as set out in Poore v. State, 531 So. 2d 161, 164 (Fla.1988): “[T]he sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence.” By imposing a true split sentence, the trial court effectively circumscribes the future sentence and will not be permitted to change its mind. Importantly, the Poore court stressed that the cumulative incarceration imposed subsequent to the violation of probation
always will be subject to any limitations imposed by the sentencing guidelines recommendation. We reject any suggestion that the guidelines do not limit the cumulative prison term of any split sentence upon a violation of probation. To the contrary, the guidelines manifestly are intended to apply to any incarceration imposed after their effective date, whether characterized as a resentencing or revocation of probation.
Id. at 165 (emphasis in original).
The issue of whether a plea agreement would change the Poore result was addressed in Lawrence v. State, 682 So. 2d 582, 583 (Fla. 5th DCA 1996), which held that the result would not change “unless the defendant in his original plea specifically recognizes and agrees that, upon violation of his probation, he can receive an above-guidelines sentence equal to the probation portion of the split sentence.” Thus, upon revocation of probation, the defendant can be sentenced to, at most, the balance of the suspended portion of the original sentence. The limiting factor is the amount permitted by the sentencing guidelines, including the bump-up provisions. See Fla. R.Crim. P. 3.701(d)(14); Jenigen v. State, 801 So. 2d 156, 157 (Fla. 2d DCA 2001). Any term beyond the guidelines would constitute an upward departure requiring compliance with the departure rules. See Perry v. State, 767 So. 2d 1282 (Fla. 5th DCA 2000).
Because Mr. Wardlaw’s sentence was neither within the guidelines range nor supported by departure reasons, we must reverse and remand for resentencing within the guidelines. See Jenigen, 801 So. 2d at 157.
Reversed and remanded for resentencing.
ALTENBERND and DAVIS, JJ., Concur.
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Flowers v. State, 899 So. 2d 1257 (Fla. 4th DCA 2005)…e on the violation of community control and the order denying his motion to correct the sen-fencing error that the defendant now appeals. The legality of a sentence is a question of law and is subject to de novo review. See, e.g., Wardlaw v. State, 832 So. 2d 258 (Fla. 2d DCA 2002). The defendant challenges his sentence on the basis that the original underlying sentences were illegal because the term of incarceration in case number 93-19553 CF10A necessarily overlapped the terms of community control and pro…
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Pinkard v. State, 185 So. 3d 1289 (Fla. 5th DCA 2016)…y Appellant regarding the consecutive sentence imposed as to Count 5.' “The legality of a sentence is a question of law and is subject to de novo [*1290] review.” Flowers v. State, 899 So. 2d 1257, 1259 (Fla. 4th DCA 2005) (citing Wardlaw v. State, 832 So. 2d 258, 259 (Fla. 2d DCA 2002)). Concerning the indictment’s first count, Appellant was convicted of the lesser included offense of manslaughter, a second-degree felony. The offense was reclassified to a first-degree felony due to Appellant’s use of a fire…
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Daniels v. State, 870 So. 2d 250 (Fla. 2d DCA 2004)…on revocation of probation when the original plea agreement did not include an express agreement as to sentencing upon revocation. Daniels preserved this issue in his rule 3.800(a) motion, and our standard of review is de novo. See Wardlaw v. State, 832 So. 2d 258, 259 (Fla. 2d DCA 2002). A similar question has been answered in the context of a true split sentence. Under a true split sentence pursuant to a negotiated plea, where the actual prison portion of the sentence was an upward departure, the plea agre…1 / 2
Previewing 3 of 8 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)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- Lawrence v. State, 682 So. 2d 582 (Fla. 5th DCA 1996)
- Bennie Demps v. State, 761 So. 2d 302 (Fla. 2000)
- Jenigen v. State, 801 So. 2d 156 (Fla. 2d DCA 2001)
- Perry v. State, 767 So. 2d 1282 (Fla. 5th DCA 2000)