THE STATE OF FLORIDA, APPELLANT,
v.
GESEPPE GALAZZ, APPELLEE
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Florida appeals a trial court's decision to vacate an illegal sentence and the defendant's plea. The court held that a suspended sentence standing alone violates Florida law because suspension of sentence must be incident to probation, and since adding probation would alter the bargained-for plea, the trial court properly vacated both the sentence and plea.
The court affirmed the trial court's decision to vacate both the sentence and plea. A suspended sentence standing alone is illegal under Florida law because suspension of sentence may only occur as an incident to probation. Since adding probation would constitute a sentence increase not bargained for in the original plea agreement and would violate double jeopardy principles, the trial court properly vacated the plea rather than attempting to modify the sentence.
[1] A suspended sentence, standing alone, is an illegal sentence in Florida.
[2] The power to suspend the imposition of sentence in Florida is an incident to probation under Chapter 948, Florida Statutes.
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 power to suspend the imposition of sentence upon a convicted criminal can be exercised by a trial judge only as an incident to probation under the provisions of Ch. 948, [Florida Statutes].”
Establishes the controlling legal principle that suspended sentences must be tied to probation
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Join FLexlaw to unlock all legal intelligenceDefendant Galazz entered a plea agreement for cocaine possession charges in exchange for a withhold of adjudication and a suspended entry of sentence …
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The State appeals an order granting a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.
Defendant-appellee Geseppe Galazz entered into a plea agreement with the State regarding the charge of purchase, or possession with intent to purchase, cocaine. Pursuant to the agreement, the defendant admitted the offense in exchange for a withhold of adjudication and a suspended entry of sentence (“SES”). Two and one-half years later, the defendant filed the Rule 3.800(a) motion, arguing that the sentence was illegal. The trial court vacated the sentence and the plea. The State has appealed.
The trial court ruled that a suspended sentence, standing alone, is an illegal sentence. The Florida Supreme Court has held that “the power to suspend the imposition of sentence upon a convicted criminal can be exercised by a trial judge only as an incident to probation under the provisions of Ch. 948, [Florida Statutes].” Helton v. State, 106 So.2d 79, 80 (Fla.1958); Mazza v. State, 948 So.2d 872, 874-75 (Fla. 4th DCA 2007); see also Sainz v. State, 811 So.2d 683, 686-88 (Fla. 3d DCA 2002). The State does not disagree with this analysis.
The State objects, however, that the trial court went on to vacate the defendant’s plea. The State contends that instead of vacating the plea, the plea should stand and the defendant should simply be resen-teneed. The State proposes that the court add probation, which would then make the SES legal.
There are Rule 3.800(a) cases in which a sentence could be modified to correct an illegality. In Ruiz v. State, 537 So.2d 682 (Fla. 3d DCA 1989), the agreed sentence exceeded the legal maximum. This court ruled that the sentence could be reduced to the legal maximum with the State’s consent. Alternatively, if the State refused to consent to a reduced sentence, then the defendant would be allowed to withdraw his plea. Id. at 683.
In this case the sole disposition was SES, which was no sentence at all. To render the SES disposition legal, it would be necessary to add a term of probation, which was not bargained for and which would increase the sentence in violation of double jeopardy principles. As the plea agreement could not be carried out, and the defendant opted to withdraw his plea, it was necessary for the court to vacate the plea. This left the original charges pending.
Affirmed.
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State v. Ortiz, 79 So. 3d 177 (Fla. 3d DCA 2012)…er an illegal sentence. See Helton v. State, 106 So. 2d 79, 80 (Fla.1958) (holding that “the power to suspend the imposition of sentence upon a convicted criminal can be exercised by a trial judge only as an incident to probation”); State v. Galazz, 2 So. 3d 1083, 1084 (Fla. 3d DCA 2009); Sainz v. State, 811 So. 2d 683, 686-88 (Fla. 3d DCA 2002). On August 20, 2011, over fourteen and one-half years after accepting the plea and its benefits without objection, the defendant filed a rule 3.800(a) motion for pos…
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State v. Robinson, 138 So. 3d 1225 (Fla. 1st DCA 2014)…n v. State, 106 So. 2d 79, 80 (Fla.1958) (holding that “the power to suspend the imposition of sentence upon a. convicted criminal can be exercised by a trial judge only as an incident to probation under the provisions of Ch. 948”); State v. Galazz, 2 So. 3d 1083, 1084 (Fla. 3d DCA2009). In any event, ordering a probationary period would not have cured the lack of any explanation for the downward departure. . “Suspended sentences are downward departure sentences, the reasons for which must be supported by…
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Figuerreo v. State, 42 So. 3d 887 (Fla. 3d DCA 2010)…ial court shall resentence the defendant to any legal sentence. If the State objects, then the defendant must be given an opportunity to withdraw his plea and proceed to trial. See Forbert v. State, 437 So. 2d 1079, 1081 (Fla.1983); State v. Galazz, 2 So. 3d 1083, 1084 (Fla. 3d DCA 2009); Epperson v. State, 955 So. 2d 642, 643-44 (Fla. 4th DCA 2007); Gifford v. State, 744 So. 2d 1046, 1047-48 (Fla. 4th DCA 1999); Ruiz v. State, 537 So. 2d 682, 683 (Fla. 3d DCA 1989). In his Rule 3.850 motion, the defendant…
Authorities Cited
- Helton v. State, 106 So. 2d 79 (Fla. 1958)
- R.S. v. State, 537 So. 2d 682 (Fla. 3d DCA 1989)
- Sainz v. State, 811 So. 2d 683 (Fla. 3d DCA 2002)
- Esmeraldo Ramos v. State, 948 So. 2d 872 (Fla. 3d DCA 2007)
- Mazza v. State, 948 So. 2d 872 (Fla. 4th DCA 2007)