SCOTT B. FOSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that separate sentences from different courts are not illegal for simultaneous imposition of incarceration and probation.
Appellant was convicted of dealing in stolen property and burglary, receiving probationary split sentences and a prison sentence. He argued the senten…
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GRIFFIN, J.
Appellant, Scott B. Foster [“Foster”], appeals the trial court’s order summarily denying his Rule 8.800(a) motion. We affirm.
Foster was convicted of, inter alia, dealing in stolen property in Orange County and received a probationary split sentence of two years in prison followed by three years of probation. He also alleges that he was convicted of burglary of a structure or conveyance in Volusia County and received a five-year prison sentence to be served concurrently to any other sentence he is presently serving. In his motion, he argues that the two sentences he received are illegal because they result in him serving incarceration and probation simultaneously.
There is case law holding that the simultaneous imposition of incarceration and probation are illegal.1 See, e.g., Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997); Dewitt v. State, 639 So. 2d 694 (Fla. 5th DCA 1994). Here, however, Foster received separate sentences from different courts at different times. The case cited by the trial court in its order, Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003), deals with the situation of a defendant who receives separate sentences from different courts at different times. Under Schurman, the probationary portion of the sentence that completes its incarcerative portion at first is tolled until the imprisonment portion of the latter sentence is complete. Thus, Foster will not serve the probationary portion of his sentence in the Orange County case until he completes the five-year sentence he is serving in the Volusia County case.
AFFIRMED.
SHARP, W., and ORFINGER, JJ., concur. . In Spencer v. State, 764 So. 2d 576 (Fla.2000), cited by Foster, the Florida supreme court merely remanded for further proceedings in light of Maddox v. State, 760 So. 2d 89 (Fla.2000).
Cases With Similar Vibessemantic neighbors from the corpus
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Smith v. State, 147 So. 3d 1077 (Fla. 5th DCA 2014)…of probation during the time that she will still be imprisoned on count III because it is error to structure a sentence where probation on one count is ordered to be served simultaneously with incarceration on other related counts. Foster v. State, 889 So. 2d 951 (Fla. 5th DCA 2004). See also Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997) (explaining that incarcerative portions of all counts of sentence must be completed before probationary portion of a related count begins); Dewitt v. State, 639 So. 2…
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Teal v. State, 197 So. 3d 610 (Fla. 2d DCA 2016)…PER CURIAM. Affirmed. See Crawley v. State, 787 So. 2d 886 (Fla. 2d DCA 2001); Foster v. State, 889 So. 2d 951 (Fla. 5th DCA 2004); State v. Savage, 589 So. 2d 1016 (Fla. 5th DCA 1991). SILBERMAN, WALLACE, and SALARIO, JJ., Concur.…
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State v. Fiddemon (Fla. 4th DCA 2020)…pellant was released …. Therefore, his probationary sentence … was in effect at the time he violated probation, and the trial court properly denied [his] claim of ineffective assistance of counsel.”) (internal citations omitted). • Foster v. State, 889 So. 2d 951, 952 (Fla. 5th DCA 2004) (affirming order summarily denying rule 3.800(a) motion where the defendant received a prison term to be followed by a probation term in one circuit, and received in another circuit a prison term “to be served concurrently t…
Authorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Dewitt v. State, 639 So. 2d 694 (Fla. 5th DCA 1994)
- Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997)
- Rider v. State, 764 So. 2d 576 (Fla. 2000)
- BON Secours-St. Joseph Hosp. & Johns E. Co. v. Norbert A. Hughes, 847 So. 2d 569 (Fla. 1st DCA 2003)
- Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003)