CHRISTINA MARIE DALTON

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CHRISTINA MARIE DALTON, Appellant,

V.

STATE OF FLORIDA, Appellee.

Opinion filed March 18, 2022

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Matthew J. Metz, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

Case No. 5D21-542 LT Case Nos. 2016-CF-000655-A 2016-CF-000063-A

ON MOTION FOR REHEARING

EVANDER, J.

On consideration of the motion for rehearing of Appellant, Christina Marie Dalton, we withdraw our prior opinion, grant the motion for rehearing, and substitute the following opinion in its place.

Christina Marie Dalton timely appeals her eleven-year prison sentence after being found guilty of violating her probation. We reverse. As Dalton correctly argues, her sentence is illegal because it exceeded her original fiveyear "true split" sentence.

In September 2016, Dalton pled guilty to possession of methamphetamine (third-degree felony) and possession of methamphetamine with intent to sell (second-degree felony). She was sentenced to concurrent five-year prison sentences on the two charges, suspended upon her successful completion of two years of community control. Two months later, Dalton violated her community control. In December 2016, she was sentenced to concurrent five-year prison sentences on the two felony drug offenses.

While in prison, Dalton sought to participate in the Department of Correction's youthful offender basic training program. The trial court agreed

to Dalton's participation in the program and, upon her successful completion, to modify her sentence.

In March 2018, the trial court entered its Order Modifying Sentence and Placing Defendant on Probation. The order placed Dalton on probation for the remainder of her sentence and recited that if Dalton violated any condition of her probation, the court “may revoke your probation and impose any sentence which it might have imposed before placing you on probation.”

In January 2021, Dalton admitted to violating her probation by possessing methamphetamine, as evidenced by a positive urine test. The trial court sentenced her to five years in prison on the possession offense and eleven years in prison on the possession with intent to sell offense. The sentences were ordered to run concurrent and Dalton was given credit for time served. Dalton unsuccessfully challenged her eleven-year prison sentence in Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error, and this appeal followed.

Dalton's initial sentence on her second-degree felony drug offense was a true split sentence. See, e.g., Obantu v. State, 50 So. 3d 107, 108 (Fla. 5th DCA 2010). By imposing this type of sentence, the original sentencing judge predetermined the sanction that Dalton would incur upon violation of her community control. See Thomas v. State, 838 So. 2d 701, 702 (Fla. 5th DCA

2003) (citing Poore v. State, 531 So. 2d 161, 165 (Fla. 1988), superseded by statute on other grounds as recognized in Crews v. State, 779 So. 2d 492, 493-94 (Fla. 2d DCA 2000)). When Dalton pled guilty to violating her community control, the trial court imposed the suspended portion of her prison sentence. When the trial court modified the sentence in 2018, the modified sentence remained compatible with the terms of the true split sentence initially imposed. Accordingly, Dalton did not lose her right to receive the incarcerated portion of the true split sentence at the sentencing hearing that is challenged in this appeal. See Powers v. State, 51 So. 3d 514, 515-16 (Fla. 2d DCA 2010) (holding defendant who originally received true split sentences of forty-eight months' imprisonment, with sentences suspended and served as two years' probation, did not lose benefits of split sentences by accepting, upon first violation of probation, sentence of thirty months' incarceration followed by eighteen months' probation, and thus defendant entitled to such benefit at sentencing following second violation of probation; sentence imposed after first violation not incompatible with longer term of imprisonment originally suspended).

The State argues that by accepting the benefit of her modified sentence, Dalton waived her right to challenge the imposition of a prison sentence greater than the five-year prison sentence imposed after her prior

probation violation. We might agree with the State if Dalton's modification order had mirrored the language set forth in section 958.045(5)(c), Florida Statutes (2016)—“[I]f the offender violates the condition of probation, the court may revoke probation and impose any sentence that it might have originally imposed.” However, Dalton's modification order provided that if Dalton violated her probation, the court “may revoke your probation and impose any sentence which it might have imposed before placing you on probation." Here, prior to the modification order, the maximum prison sentence that could have been imposed on Dalton, pursuant to her initial true split sentence, was five years. The language of the court's modification order was consistent with its initial intent, as reflected by the true split sentence, to limit Dalton's prison sentence exposure on her second-degree felony to five years in prison. The court's modification order did not contain language warning Dalton that if she violated her probation, the court could impose a prison sentence greater than five years.

Dalton also argues that, in imposing her new sentence, the trial court referred to inappropriate sentencing considerations. While some of the trial judge's discussion of his personal opinion regarding the differences between a drug abuser and a drug addict may have been unnecessary and unhelpful,

we cannot conclude, under the facts of this case, that any of those comments constituted reversible error.

On remand, the trial court is directed to reduce Dalton's prison sentence on the possession of methamphetamine with intent to sell conviction to five years, with credit for time served.¹

AFFIRMED, in part; REVERSED in part; and REMANDED WITH

INSTRUCTIONS.

EDWARDS and HARRIS, JJ., concur.