ANTHONY GEORGE NADZO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nadzo appeals the revocation of his probation and resulting sentences in three criminal cases. The court reversed and remanded for resentencing on some counts because the trial court erroneously believed it was required to impose the full original suspended sentence, and reversed the DUI conviction entirely because the trial court exceeded the statutory maximum sentence for that offense.
The court reversed the sentences in cases 06-CF-015497, 06-CF-020240, and 06-CF-020357 for resentencing because the trial court misunderstood that it was required to impose the full suspended sentence, when it had discretion to impose less. The court also reversed and remanded the DUI conviction and revocation order in case 06-CF-015497 because the original fifty-nine month sentence exceeded the one-year statutory maximum for first-degree misdemeanors, rendering the probation invalid and depriving the court of jurisdiction.
[1] A trial court revoking probation has the discretion to impose a sentence less than the original suspended sentence.
[2] A trial court's mistaken belief that it lacks discretion to impose a sentence less than the original suspended sentence warrants reversal and remand for resentencing.
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Join FLexlaw to unlock all legal intelligence“I have to sentence you to fifty-nine months. I have no choice; my hands are tied. It was the deal you made.”
Demonstrates the trial court's erroneous belief that it lacked discretion and was bound by the plea agreement to impose the full suspended sentence.
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Join FLexlaw to unlock all legal intelligenceIn September 2006, Nadzo pleaded guilty to possession of a controlled substance (third-degree felony) and DUI (first-degree misdemeanor) and was sente…
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Anthony George Nadzo appeals the revocation of his probation and the resulting judgments and sentences in circuit court case numbers 06-CF-015497, 06-CF-020240, and 06-CF-020357. We affirm in part and reverse in part.
On September 20, 2006, Nadzo pleaded guilty in case number 06-CF-015497 to possession of a controlled substance, a third-degree felony, and driving under the influence, a first-degree misdemeanor. The trial court imposed concurrent sentences of six months’ probation. On December 4, 2006, an affidavit was filed alleging that Nadzo had violated his probation. On March 19, 2007, Nadzo admitted to violating his probation. He also pleaded no contest to multiple counts in case numbers 06-CF-020240 and 06-CF-020357. The trial court sentenced Nadzo in all three cases to concurrent terms of fifty-nine months in prison, suspended, with twenty-four months of drug offender probation.
On September 11, 2008, an affidavit of violation of probation was filed in all three cases. At the revocation hearing on January 8, 2009, Nadzo admitted to violating his probation. Nadzo asked the trial court to exercise its discretion and impose a sentence of less than fifty-nine months in prison. The court rejected Nadzo’s request and stated, “I have to sentence you to fifty-nine months. I have no choice; my hands are tied. It was the deal you made. I have compassion for you, I don’t want to do that but that’s what I have to do.” The court revoked Nadzo’s probation in all three cases and sentenced Nadzo to concurrent terms of fifty-nine months in prison.
The State properly concedes that the trial court was under the misconception that it was required to impose the full term of the suspended sentence originally *692imposed when Nadzo was placed on probation in March 2007. The court had the option to “revoke, modify, or continue the probation or community control or place the probationer into a community control program.” Cowart v. State, 860 So.2d 1041, 1042 (Fla. 5th DCA 2003) (quoting § 948.06(1), Fla. Stat. (2002)). Furthermore, upon revocation of probation, the court was authorized to impose a sentence less than the original sentence. See id. Therefore, we reverse Nadzo’s sentence for possession of a controlled substance in case number 06-CF-015497 and his sentences in case numbers 06-CF-020240 and 06-CF-020357, and remand to the trial court for resentencing. See Griffin v. State, 783 So.2d 337, 338 (Fla. 5th DCA 2001) (reversing and remanding for resen-tencing where trial court sentenced defendant under an “apparent misunderstanding of the law”).
Nadzo also contends that the trial court lacked jurisdiction to revoke his probation and to sentence him for the DUI offense in case number 06-CF-015497 because he had already served the statutory maximum for that offense. When the court imposed the suspended sentence of fifty-nine months in prison and twenty-four months of probation in March 2007, it exceeded the statutory maximum of one year for a first-degree misdemeanor. See §§ 316.193(6)(a), 775.082(4)(a), Fla. Stat. (2005). Therefore, Nadzo was illegally on probation and the court lacked jurisdiction to revoke his probation in January 2009 and sentence him on the DUI charge. See Manning v. State, 961 So.2d 1135, 1136-37 (Fla. 2d DCA 2007).
Accordingly, we reverse the revocation order and the judgment and sentence for the DUI offense in case number 06-CF-015497 and remand with directions that they be stricken. We affirm the revocation of probation and the resulting judgments in case numbers 06-CF-020240 and 06-CF-020357 and for the possession of a controlled substance count in case number 06-CF-015497, but we reverse the sentences and remand for resentencing. On remand, the trial court shall enter written revocation orders consistent -with this opinion.
Affirmed in part, reversed in part, and remanded with directions.
NORTHCUTT and VILLANTI, JJ., Concur.
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…ore successful completion required by probation condition). Step Two Upon finding a violation of probation or community control, the court decides whether to revoke, modify, or continue it. See § 948.06(2)(a, e), Fla. Stat. (2011); Nadzo v. State, 24 So. 3d 690, 692 (Fla. 2d DCA 2009); Mikell v. State, 903 So. 2d 1054, 1055 (Fla. 2d DCA 2005); State v. Casner, 825 So. 2d 993, 993 (Fla. 2d DCA 2002); Brown v. State, 455 So. 2d 635 (Fla. 5th DCA 1984) (citing Harris v. State, 453 So. 2d 228 (Fla. 5th DCA 198…
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Casey v. State, 50 So. 3d 782 (Fla. 2d DCA 2010)…lea; I can sentence you to any lawful sentence, up to five years in prison — I believe, actually, you have five years in prison suspended, so there’s not a lot of mystery about what’s going to happen here, I don’t think. Here, as in Nadzo v. State, 24 So. 3d 690, 691-92 (Fla. 2d DCA 2009), the trial court was under the mistaken belief that it was mandatory to impose the previously suspended prison term. In Nadzo, 24 So. 3d at 692, this court noted that the trial court could have continued, modified, or revo…
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Harvey v. State, 156 So. 3d 583 (Fla. 5th DCA 2015)…required to impose the suspended sentence in the event of a violation. Instead, the court retains the discretion and authority to impose any sentence it could otherwise have imposed. Casey v. State, 50 So. 3d 782 (Fla. 2d DCA 2010); Nadzo v. State, 24 So. 3d 690 (Fla. 2d DCA 2009); Cowart v. State, 860 So. 2d 1041 (Fla. 5th DCA 2003); Lacey, 831 So. 2d at 1270; Griffin v. State, 783 So. 2d 337 (Fla. 5th DCA 2001). We make no determination as to the propriety of the sentence imposed. The trial court was wel…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. State, 783 So. 2d 337 (Fla. 5th DCA 2001)
- Cowart v. State, 860 So. 2d 1041 (Fla. 5th DCA 2003)
- Manning v. State, 961 So. 2d 1135 (Fla. 2d DCA 2007)