ANDERSON PAUL HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anderson Paul Harris appealed his probation revocation and resulting 180-month sentence. The court affirmed the revocation of probation but reversed the sentence because the trial court exceeded its authority by imposing a sentence longer than the suspended portion of Harris's original true split sentence.
A trial court that imposes a true split sentence is limited upon probation revocation to sentencing the defendant only up to the full original sentence of incarceration and cannot impose a sentence exceeding the suspended portion of that original sentence, as doing so would violate the double jeopardy clause.
[1] A trial court may not sentence a defendant to a greater term of incarceration than the suspended portion of a true split sentence upon revocation of probation.
[2] A true split sentence is defined as a prison term with a portion suspended, contingent upon successful completion of probation for the suspended term.
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Join FLexlaw to unlock all legal intelligence“is a prison term of a number of years with part of that prison term suspended, contingent upon completion on probation of the suspended term of years.”
Definition of a true split sentence from Florida Supreme Court precedent cited approvingly by the court
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Join FLexlaw to unlock all legal intelligenceIn October 2008, Harris pleaded guilty to burglary of a dwelling and received a sentence of 132.3 months imprisonment with the last 48 months suspende…
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Anderson Paul- Harris appeals from an order revoking his probation and the resulting judgment and sentence imposed following a bench trial. We affirm the revocation of probation without further comment. However, we reverse the sentence because the trial court erred by sentencing Harris to a greater term of incarceration than the suspended portion of his original true split sentence.
In October 2008, Harris pleaded guilty to burglary of a dwelling and was sentenced to serve 132.3 months in prison, with the last 48 months of his sentence suspended on the condition that Harris successfully complete 48 months of probation. Harris served the incarcerative portion of this original sentence and was released, but he was later alleged to have violated his probation. Harris denied the allegations, but following a non-jury trial, the court found that Harris had willfully and materially violated his probation. The court thereafter revoked Harris’s probation and sentenced him to serve 180 months in prison.
Harris argues on appeal that because his original sentence in 2008 was a “true split sentence,” the trial court was precluded from later sentencing him to more than the remaining balance of the suspended portion of the original sentence. We agree with Harris that his original sentence was a “true split sentence,” which the Florida Supreme Court has explained “is a prison term of a number of years with part of that prison term suspended, contingent upon completion on probation of the suspended term of years.” Gibson v. Fla. Dep’t of Corr., 885 So.2d 376, 381 (Fla. 2004) (quoting Eldridge v. Moore, 760 So.2d 888, 889 n.1 (Fla. 2000)).
Harris is also correct that once the trial court decided to revoke his probation, it was limited to sentencing Harris only up to the full original sentence of incarceration (132.3 months). See Boone v. State, 967 So.2d 999, 1001 (Fla. 5th DCA 2007) (“[WJhen a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.” (alteration in original) (quoting Mack v. State, 823 So.2d 746, 748 n.3 (Fla. 2002).)).
Accordingly, we affirm the order revoking probation, reverse the sentence, and remand for resentencing for a term that does not exceed the original 132.3 months’ imprisonment, with credit for prison and jail time previously served. See Bracero v. State, 14 So.3d 1058, 1059-60 (Fla. 2d DCA 2009) (citing Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007)). If Harris qualifies, counsel shall be appointed to represent Harris at the resentencing.
AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.
SAWAYA and ORFINGER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Peterson v. State, 230 So. 3d 1274 (Fla. 5th DCA 2017)…ermitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.” Harris v. State, 218 So. 3d 457, 458 (Fla. 5th DCA 2017) (quoting Boone v. State, 967 So. 2d 999, 1001 (Fla. 5th DCA 2007)). The State disagrees that when first sentenced Appellant received a “true” split sentence. Rather, the State argues that Appellant initially received a “pro…
Authorities Cited
- Mack v. State, 823 So. 2d 746 (Fla. 2002)
- Eldridge v. Moore, 760 So. 2d 888 (Fla. 2000)
- Gibson v. Fla. Dep't OF Corr., 885 So. 2d 376 (Fla. 2004)
- Pressly v. Tadlock, 968 So. 2d 1057 (Fla. 2d DCA 2007)
- Boone v. State, 967 So. 2d 999 (Fla. 5th DCA 2007)
- Bracero v. State, 14 So. 3d 1058 (Fla. 2d DCA 2009)