Clemons v. State
| Decision Date | 05 January 1994 |
| Docket Number | No. 93-00796,93-00796 |
| Citation | 629 So.2d 1067 |
| Parties | 19 Fla. L. Weekly D98 Lorenzo Leroy CLEMONS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Karen K. Purdy, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellee.
Defendant challenges the propriety of a sentence imposed after a nolo plea in two cases. We reverse and remand for resentencing.
In the first case, defendant was charged with aggravated assault with a firearm. In the second case, he was charged with burglary of a conveyance and grand theft auto. Under the terms of the plea agreement, the state was to abandon the burglary of a conveyance charge in the second case. In return, defendant was to plead nolo to the two remaining charges in the two cases, for which he was to receive "any legal sentence, concurrent both counts" within the "recommended" range of the guidelines.
At sentencing, the trial court imposed three years incarceration, the mandatory minimum, for the aggravated assault with a firearm. The court then imposed five years probation for the grand theft, to run concurrent with the prison sentence. A condition of probation was to provide restitution to the victim, the amount to be determined at a hearing to be held at a later date. Defense counsel objected, arguing that incarceration and probation cannot be imposed to run concurrently.
On appeal, defendant argues that the concurrent imposition of incarceration and probation was illegal in this case. The primary authority he cites, Tripp v. State, 622 So.2d 941 (Fla.1993) (), offers little support to his position since he, after all, did not receive a Tripp sentence. Nonetheless, a long line of cases from this court directly on point holds that it is reversible error to impose probation and incarceration concurrently. E.g., Nobles v. State, 605 So.2d 996 (Fla. 2d DCA 1992); Barr v. State, 474 So.2d 417 (Fla. 2d DCA 1985); Roy v. State, 207 So.2d 52 (Fla. 2d DCA 1967), cert. dismissed, 211 So.2d 554 (Fla.1968). The rationale in these cases stems from Barr, 474 So.2d at 419. Under these cases, resentencing is necessary.
Defendant argues that on remand, he should...
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Thomas v. State, 2D16–2236.
...DCA 2006) ; Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005) ; Mearns v. State, 779 So.2d 282 (Fla. 2d DCA 1998) ; Clemons v. State, 629 So.2d 1067 (Fla. 2d DCA 1994).WALLACE, BADALAMENTI, and ROTHSTEIN–YOUAKIM, JJ., ...
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Gardner v. State, 92-1865
...his sentences are illegal, because the court imposed concurrent terms of probation and incarceration, and he cites Clemons v. State, 629 So.2d 1067, 1068 (Fla. 2d DCA), review denied, 639 So.2d 976 (Fla.1994), which holds that it is reversible error to impose probation and incarceration con......
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