Hankey v. State, 87-1854

• Decision Date: 30 June 1988
• Docket Number: No. 87-1854,87-1854
• Citation: 529 So.2d 736,13 Fla. L. Weekly 1543
• Parties: 13 Fla. L. Weekly 1543 Thomas Raymond HANKEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 736

529 So.2d 736

13 Fla. L. Weekly 1543

Thomas Raymond HANKEY, Appellant, v. STATE of Florida, Appellee.

No. 87-1854.

District Court of Appeal of Florida Fifth District.

June 30, 1988.

Rehearing Denied Aug. 11, 1988.

Appeal from the Circuit Court for Putnam County; Robert R. Perry, judge.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Office of the Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

AFFIRMED on the authority of Carr v. State, 528 So.2d 406 (Fla. 5th DCA 1988).

DAUKSCH and COBB, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge, dissenting.

The defendant's recommended sentencing guideline range is community control or 12-30 months' incarceration. The last sentence ¹ pronounced and imposed without reasons justifying departure was "incarceration for a term of thirty (30) months followed by a period of 7 years on probation." The issue is whether this is a departure sentence and invalid for lack of justifying reasons.

There is a slew of cases involving this and related problems presently passing through this court, most from Orange County, all being affirmed, many, as this one, without opinion, some with opinions. See, e.g., Carr v. State, 528 So.2d 406 (Fla. 5th DCA 1988); McKee v. State, 528 So.2d 417 (Fla. 5th DCA 1988). See also Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988) which involves related issues. If these sentences (both true split sentences and hybrid sentences) being approved are not departure sentences, then sentencing judges have truly found the long-sought northwest passage around the sentencing guidelines. The method is simple: without giving reasons justifying departure from the guidelines, merely (1) impose a sentence of incarceration for the maximum period authorized by statute; (2) "split" that sentence, requiring the immediate service of a portion falling within the recommended guidelines sentencing range; and (3) suspend or defer the balance of the "lawful" sentence subject to a long period of probation. ² Then, when the defendant later violates probation, he is merely given credit for time previously served and recommitted under the original sentence ³ for another period of incarceration not to exceed the recommended guideline range, and the remaining balance of the original "lawful" sentence is again deferred or suspended subject to a further term of probation; the sentencing judge then can continue to repeat this cycle, each time imposing successive increments of incarceration within the recommended guideline range, until the defendant has served the maximum period of incarceration authorized by statute. Or, as an interesting variation, the sentencing judge can, without giving reasons for departure, merely impose a period of incarceration within the recommended guideline range and append a long period of probation; then, when the defendant later violates probation, the judge merely gives him credit for time previously served and (under the authority of Franklin v. State ) resentences him to another term of incarceration within the recommended guideline range, again appending a long period of probation; the judge can continue to repeat this cycle ⁴ and impose successive periods of incarceration within the recommended guideline range, each time appending a period of probation until the defendant has served the maximum incarceration provided by statute. ⁵ Piecemeal sentencing violates the proscription contained in Ex Parte Bosso, 41 So.2d 322 (Fla.1949) against imposing a criminal sentence in portions. See also Massey v. State, 389 So.2d 712 (Fla. 2d DCA 1980). In Bosso, the court struck the probation because, upon violation, the court would be powerless to punish the defendant further; while in Franklin, the court held a defendant could be sentenced a second time for the same offense in order for the court to be able to punish for violation of the probation appended to the first sentence.

In Francis v. State, 487 So.2d 348 (Fla. 2d DCA 1986), rev. denied, 492 So.2d 1332 (Fla.1986), the recommended guideline range, as in this case, was "community control or 12-30 months' incarceration." The appellate court held that a sentence of two years' imprisonment followed by two years' community control was not a departure sentence, relying on the guidelines committee note to Florida Rule of Criminal Procedure 3.701(d)(12), which specifies that if a split sentence of state prison and probation supervision is imposed, the incarcerative portion should be within the guideline range and the total sanction should not exceed the term provided by general law. Note that this is also the basis for the holdings in Carr and McKee.

In Hankey v. State, 505 So.2d 701 (Fla. 5th DCA 1987), rev. denied, 515 So.2d 230 (Fla.1987), and in VanKooten v. State, 512 So.2d 214 (Fla. 5th DCA 1987), this court held that when the recommended guideline range was community control or 12-30 months' incarceration, the imposition of 30 months' incarceration and community control constitutes a departure sentence, and certified conflict with Francis. The supreme court in State v. VanKooten, 522 So.2d 830 (Fla.1988) approved VanKooten and disapproved Francis.

In Primm v. State, 524 So.2d 475 (Fla. 2d DCA 1988), the recommended guideline sentence was 2 1/2-3 1/2 years' incarceration, and the sentence imposed was 3 1/2 years in prison and 1 1/2 years' community control. Recognizing that the case was controlled by the supreme court's decision in State v. VanKooten, the appellate court reversed the sentence, holding that "since the appellant's split sentence totals 5 years, it is a departure from the recommended sentence." Thus, Carr and McKee conflict with Primm.

The concept of probation, as adopted by the Florida legislature in 1941, was to provide an alternative to the imposition, by sentence, of the penalties provided by law for the commission of a criminal offense. Section 948.01(3), Florida Statutes, provides for probation when the court finds that "the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law," and that in order to place a defendant on probation, the court "shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation" [emphasis added]. Clearly, probation was not intended to be a sentence, nor was it intended to be a sanction, penalty, or punishment such as is imposed by a sentence. It is a state of being, status, or condition, not unlike the religious concepts of purgatory and limbo, into which a defendant is placed in lieu of a sentence imposing penalties, such as incarceration or fine. Originally Chapter 948, providing for probation, did not contemplate the imposition of incarceration as a condition of probation; admittedly, its later invention, use, approval, ⁶ and recognition by statute (§ 948.03(7), Fla.Stat.) has greatly muddied the original concept of probation. ⁷

In any event, and without regard to (1) its nomenclature as a sentence, (2) whether probation, in substance, is a non-penalty status imposed in lieu of a penalty or a "penalty" or "less restrictive penalty" (as Justice Overton, specially concurring in Villery, views it), or (3) whether incarceration is actually imposed as a condition of probation or merely exists as a threat to be imposed upon violation of other conditions, probation is, in legal contemplation, either a sanction and a penalty or it is not--it cannot be both ways or be one thing for one purpose and something else for another purpose. If it is, in law, a penalty then, of course, it is subject to constitutional double jeopardy guarantees. ⁸

In this case, the sentence imposed was 30 months' incarceration, which was the absolute maximum punishment within the 12-30 months' incarceration recommended guideline...