THOMAS J. GILBERT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Thomas Gilbert appeals an order denying his motion to correct an illegal sentence, arguing his combined incarceration and probation terms exceeded his guideline maximum. The court affirmed, holding that the incarcerative portion and consecutive probationary term are separately calculated under sentencing guidelines and do not combine to exceed the legal maximum.
The sentence is legal. The incarcerative portion of a sentence and a consecutive probationary term are calculated separately: the incarceration must not exceed the guideline amount, but a consecutive probationary period is permissible up to the legal maximum without combining with the incarceration term.
[1] A claim that a sentence exceeds the legal maximum is procedurally barred if it has been raised and rejected in a prior appeal.
[2] A sentence of incarceration is permissible so long as it does not exceed the guidelines amount.
Previewing 2 of 4 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“The incarcerative part of the sentence is permissible so long as it does not exceed the guidelines amount. A consecutive probationary period is permissible up to the legal maximum.”
Establishes the core holding that incarceration and probation terms are calculated separately for guideline compliance
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Join FLexlaw to unlock all legal intelligenceGilbert was sentenced to concurrent thirty-year terms of incarceration for sexual battery on three counts (counts one, two, and four), all first-degre…
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COPE, J.
Thomas J. Gilbert appeals an order denying his motion to correct illegal sentence. We affirm.
In earlier proceedings, this court remanded for resentencing of defendant-appellant Gilbert within the 1994 guidelines. Gilbert v. State, 706 So. 2d 135 (Fla. 3d DCA 1998); see also Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996). After resentencing, there was a further appeal, and this court affirmed. Gilbert v. State, 755 So. 2d 197 (Fla. 3d DCA 2000). By this motion to correct illegal sentence, the defendant argues that his sentence exceeds the legal maximum. We believe this claim to be procedurally barred, as it appears to have been raised and rejected in the appeal decided in 2000.
In any event, we conclude that the sentence is legal. Insofar as pertinent here, the defendant’s 1994 guidelines were for a maximum sentence of 32.6 years. Defendant was sentenced to concurrent terms of thirty years incarceration for sexual battery on counts one, two, and four. These are all first degree felonies.*
The defendant was given a consecutive thirty year probationary term for a fourth sexual battery count, count five.
The defendant argues that when imposing a sentence of incarceration followed by probation, the combined total cannot exceed 32.6 years, which is the maximum of his guidelines score. That is not so. The decision in Tripp v. State, 622 So. 2d 941 (Fla.1993), considered a similar issue. The incarcerative part of the sentence is permissible so long as it does not exceed the guidelines amount. A consecutive probationary period is permissible up to the legal maximum. Since the trial court is allowed to impose consecutive sentences, see § 921.16, Fla. Stat., Tripp, 622 So. 2d at 942-43; Hoffman v. State, 776 So. 2d 286, 287 (Fla. 3d DCA 2000), it follows that the consecutive term of thirty years of probation in this case is within the legal maximum. The Tripp decision does, however, impose a limitation on the amount of incarceration which can be ordered if the defendant violates the consecutive term of probation. 622 So. 2d at 942.
We affirm on the remaining issues without comment.
Affirmed.
*
There were concurrent sentences on multiple third degree felonies, which are immaterial here.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996)
- Gilbert v. State, 706 So. 2d 135 (Fla. 3d DCA 1998)
- Gordon v. State, 706 So. 2d 135 (Fla. 5th DCA 1998)
- Readon v. State, 755 So. 2d 197 (Fla. 3d DCA 2000)
- Hoffman v. State, 776 So. 2d 286 (Fla. 3d DCA 2000)