Gonzales v. State, 95-0400
| Decision Date | 12 July 1995 |
| Docket Number | No. 95-0400,95-0400 |
| Citation | 658 So.2d 1091 |
| Parties | 20 Fla. L. Weekly D1598 Julius GONZALES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Julius Gonzales, Bowling Green, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.
In 1982, the appellant was convicted of lewd assault and was sentenced to fifteen years' probation. After he had successfully served ten years of this probationary term, his probation was revoked for a violation involving new criminal charges. The appellant was given a split sentence of an additional seven years' incarceration to be followed by three years' probation. This new sentence, when added to the probationary period already served, exceeds the maximum sentence of fifteen years permitted for lewd assault. Secs. 800.04(3), 775.082(3)(c), Fla.Stat. (1981).
The appellant filed a motion to correct his sentence, claiming that he should have received credit for the ten years he had already served on probation. The circuit court denied the motion, and this appeal followed. While the appellant is not entitled to credit for the entire ten year period under Florida Statutes Section 948.06(2), the new sentence is illegal because it exceeds the maximum punishment provided by law.
Under State v. Holmes, 360 So.2d 380, 383 (Fla.1978), the total term of a split sentence imposed upon conviction cannot exceed the maximum provided by statute, and upon revocation of probation, the sentencing options are restricted to any sentence that could have been imposed on the original charge. The fifth district recently held that after revocation of probation a trial court is free to impose a split sentence that exceeds the statutory maximum when added to the time served on probation prior to violation, provided that the probationary portions of the sentence do not exceed the statutory maximum. Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995). Under Phillips, a defendant could not be sentenced to a purely probationary sentence that exceeds the statutory maximum by a single day, but he could be given a split sentence that effectively doubles the maximum sentence by imposing a term of probation that meets the maximum followed by another maximum term of imprisonment.
Because we cannot reconcile this result with Holmes, we decline to follow Phillips, and certify the conflict. The...
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Jones v. State, 94-3270
...years, and is therefore illegal. If the appellant's position is correct, the sentence is an illegal split sentence. Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA 1995); Weidner v. State, 559 So.2d 705 (Fla. 4th DCA 1990). Appellant's agreement to the thirty-five year sentence as part of h......
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Rivas v. State
...exceed the statutory maximum of fifteen years on Count I and five years on Count II of the original offenses. See Gonzales v. State, 658 So.2d 1091, 1092 (Fla. 4th DCA 1995). However, the trial court apparently intended to credit defendant with probation time served on the original sentence......
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Russell v. State, 95-3591
...with the Second District holding in Moody v. State.Defendant also suggests that our holding is in conflict with Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA 1995). Gonzales involved a split sentence imposed after revocation of probation, whereas in the present case the trial court impose......
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Phillips v. State, 95-943
...Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995). But see Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA 1995). DAUKSCH, THOMPSON and ANTOON, JJ., ...