Franklin v. State
| Decision Date | 15 June 1989 |
| Docket Number | No. 72488,72488 |
| Citation | 545 So.2d 851,14 Fla. L. Weekly 281 |
| Parties | 14 Fla. L. Weekly 281 Robert Bernard FRANKLIN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., and Pamela D. Cichon, Asst. Atty. Gen., Daytona Beach, for respondent.
We have for review Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988) (en banc), which certified the following question of great public importance:
Having sentenced a defendant to a term of incarceration followed by probation or community control, may the court after a violation of the probation or community control, impose any sentence which could have been originally imposed with credit for time served and must such sentence be within the guideline range unless valid reasons for departure are given[?]
Id. at 164. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
In the recent opinion of Poore v. State, 531 So.2d 161 (Fla.1988), we cited with approval the opinion of the Fifth District below, id. at 164, and held that Florida law recognizes two forms of "split sentences." The first, a "true split sentence," occurs when the judge sentences the defendant to incarceration but suspends a portion of the term. The second, a "probationary split sentence," occurs when the judge sentences a defendant to a period of incarceration followed by a period of probation or any form of community control. The sentence in this instance is of the second type.
Under Poore, a judge is entitled to impose a true split sentence for any length of time provided by law so long as the incarcerative portion falls within the guidelines recommendation, assuming no valid reason for departure exists for the initial sentence. Upon the violation of probation after incarceration, the judge then may resentence the defendant to any period of time not exceeding the remaining balance of the withheld or suspended portion of the original sentence, provided that the total period of incarceration, including time already served, may not exceed the one-cell upward increase permitted by Florida Rule of Criminal Procedure 3.701(d)14. Any further departure for violation of probation is not allowed. Lambert v. State, 545 So.2d 838, 841-842 (Fla.1989).
In cases involving a probationary split sentence, the judge also may impose sentence for any length of time provided by law so long as the incarcerative portion does not exceed the guidelines, unless a valid reason for departure exists. Upon the violation of probation, however, the judge then may sentence the defendant to any period of incarceration permitted by the guidelines up to the maximum provided by the...
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...confirmed this decision in State v. Tuthill, 545 So.2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So.2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry v. State, 546 So.2d 409 (Fla.1989). In Hamilton v. State, 548 So.2d 234 (Fla.1989) a 5-2 ......
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...the Fifth District Court of Appeal's decision of Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988), approved on other grounds, 545 So.2d 851 (Fla.1989). Because our approval of Franklin did not directly address the issue raised in the instant case, we will do so now to clarify the law. I......
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King v. State, 93-1261
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Arnette v. State, 89-1037
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