WARREN FERRELL, PETITIONER,
v.
AL LAMBERTI, SHERIFF OF BROWARD COUNTY, FLORIDA, RESPONDENT
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Warren Ferrell sought habeas corpus relief from incarceration pending violation of probation proceedings, claiming his probation was illegally imposed. The Florida Fourth District Court of Appeal granted the petition in part, directing the trial court to correct an illegal sentence that improperly imposed probation after a three-year prison sentence.
The court granted the habeas corpus petition in part, holding that the March 2004 sentence was illegal because it improperly imposed probation after incarceration in violation of true split sentence principles. The court directed the trial court to correct the sentence and then reconsider Ferrell's entitlement to pretrial release.
[1] A defendant has no constitutional right to bail pending revocation of probation proceedings.
[2] A true split sentence involves a period of incarceration followed by a period of probation.
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“When a defendant violates probation after being sentenced to a true split sentence, the judge may not order new incarceration exceeding the remaining balance of the withheld or suspended portion of the original sentence.”
Establishes the legal principle governing sentencing in probation violation cases involving true split sentences
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Join FLexlaw to unlock all legal intelligenceIn February 2004, Ferrell entered a plea and received a suspended three-year sentence with community control followed by probation as a youthful offen…
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PER CURIAM.
Warren Ferrell (Defendant) filed an emergency petition for writ of habeas corpus, seeking release from incarceration pending violation of probation proceedings, claiming he was illegally placed on probation. We grant the petition, to the extent discussed below. In February 2004, Defendant entered a plea, received a suspended sentence of three years, and was placed on community control followed by probation as a youthful offender. After violating, in March 2004 he was adjudicated and was sentenced to three years in prison followed by two years of probation. Following his release from prison and placement on probation, he was arrested on new charges on May 14, 2008. His bond was set as a no bond hold, presumably because of the pending violation of probation charges, as there is no constitutional right to bail pending revocation of probation proceedings. See Genung v. Nuckolls, 292 So. 2d 587 (Fla.1974); Peraza v. Bradshaw, 966 So. 2d 504, 505 (Fla. 4th DCA 2007).
Defendant filed a rule 3.800(a) motion to correct illegal sentence with the trial court, claiming the imposition of probation after the three-year prison sentence was illegal. The motion is set to be heard on August 8, 2008. Meanwhile, his motion for release on his own recognizance or the setting of bond was denied.
The state agrees that the imposition of probation in Defendant’s March 2004 sentence was improper. His initial sentence was a “true split sentence.” Poore v. State, 531 So. 2d 161, 164 (Fla.1988); Wardlaw v. State, 832 So. 2d 258, 259 (Fla. 2d DCA 2002). When a defendant violates probation after being sentenced to a true split sentence, the judge may not order new incarceration exceeding the remaining balance of the withheld or suspended portion of the original sentence. Id.; Snell v. State, 902 So. 2d 957 (Fla. 4th DCA2005).1
We grant the petition to the extent that we direct the trial court to correct Defendant’s March 2004 sentence forthwith, and then reconsider his entitlement to pretrial release on his pending charges.
Granted in part with instructions.
STEVENSON, GROSS and DAMOORGIAN, JJ., concur. . A sentence imposed in excess of the suspended sentence may be challenged in a rule 3.800(a) motion. E.g., Cook v. State, 880 So. 2d 771 (Fla. 2d DCA 2004).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bracero v. State, 14 So. 3d 1058 (Fla. 2d DCA 2009)…d.” Pressly v. Tadlock, 968 So. 2d 1057, 1058 (Fla. 2d DCA 2007) (quoting Crews, 779 So. 2d at 493). Cases from other districts also reflect that the double jeopardy concerns explained in Poore remain an issue in sentencing. In Ferrell v. Lamberti, 987 So. 2d 771 (Fla. 4th DCA 2008), the defendant entered his plea and was originally sentenced in 2004. The Fourth District stated, “When a defendant violates probation after being sentenced to a true split sentence, the judge may not order new incarceration exce…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Genung v. Nuckolls, 292 So. 2d 587 (Fla. 1974)
- Wardlaw v. State, 832 So. 2d 258 (Fla. 2d DCA 2002)
- Peraza v. Bradshaw, 966 So. 2d 504 (Fla. 4th DCA 2007)
- Cook v. State, 880 So. 2d 771 (Fla. 2d DCA 2004)
- Snell v. State, 902 So. 2d 957 (Fla. 4th DCA 2005)