ERIC DEVON BROOKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In an Anders appeal, the Florida First District Court of Appeal reversed a trial court's decision to resentence a probation violator with consecutive sentences after originally imposing concurrent sentences. The court held that when a trial court imposes concurrent sentences and then suspends them in favor of probation (a "true split sentence"), it cannot later resentence the defendant to consecutive sentences upon a probation violation.
The court held that when an original sentence is a "true split sentence" (concurrent sentences with the period of confinement suspended and probation imposed), the trial court may not subsequently impose consecutive sentences upon probation violation. The sentences must remain concurrent.
[1] A trial court, upon violation of community control following a true split sentence, cannot resentence a defendant for a term greater than the term of the suspended senten…
[2] In resentencing a defendant after a violation of community control, the period of incarceration cannot exceed the lesser of the guidelines recommendation or the remainder…
Previewing 2 of 3 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 court initially concurrently imposes prison sentences, and then suspends those sentences and imposes a term of probation, this constitutes a "true split sentence."”
Establishes the legal framework for analyzing the original sentencing structure
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Join FLexlaw to unlock all legal intelligenceBrooker was convicted of burglary of a dwelling and grand theft. The trial court imposed a ten-year sentence for burglary and a five-year sentence for…
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In this Anders1 appeal, the appellant was originally convicted of burglary of a dwelling and grand theft, and the court concurrently imposed a ten-year term of imprisonment for the burglary with a five-year term of imprisonment for the grand theft. The court suspended both sentences and ordered the appellant to serve five years on drug offender probation, with the requirement that he first complete inpatient drug treatment at the Phoenix House. ' The appellant failed to complete this inpatient treatment. The state then filed an affidavit of violation of probation.
The appellant admitted to violating probation, and the trial court then conducted the sentencing portion of the hearing. Following witness testimony, the court asked the prosecutor whether it was bound by the initial concurrent imposition of the sentences, and the prosecutor incorrectly advised the court that “when a sentence is imposed concurrently at the time of the onset of a plea, if there’s ever a future violation, the Court can always revoke and resentence consecutively later on.” Appellant’s counsel argued that the court should not run the sentences consecutively. The court then resentenced the appellant to ten years’ and five years’ imprisonment, but this time it consecutively imposed the sentences, for a total of 15 years’ imprisonment.
When a court initially concurrently imposes prison sentences, and then suspends those , sentences and imposes a term of probation, this • constitutes a “true split sentence.” See Poore v. State, 531 So.2d 161, 164 (Fla.1988)2 (discussing the differences between a “true split sentence” and a “probationary split sentence,” and explaining that the former is a “period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion” while the latter is “a period of confinement, none of which is suspended, followed by a period of probation”). This same rationale applies when the entire period of confinement is suspended. See State v. Powell, 703 So.2d 444 (Fla.1997). Further, when an original sentence is a true split sentence, as is the situation in *1283this appeal, a trial court may not subsequently consecutively impose sentences when the original sentences were concurrently imposed. See Towbridge v. State, 564 So.2d 604 (Fla. 3d DCA1990).
We therefore affirm the length of the sentences imposed, as they are within the statutory máximums for these offenses, but we reverse and remand with directions that the lower court modify the judgment to reflect that these two sentences shall run concurrently to each other.
AFFIRMED IN PART, REVERSED AND REMANDED WITH DIRECTIONS.
ROWE, SWANSON, and BILBREY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Powell, 703 So. 2d 444 (Fla. 1997)
- Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)
- Hunter v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)
- Montgomery v. State, 564 So. 2d 604 (Fla. 3d DCA 1990)