Henderson v. State, 92-01001

• Decision Date: 14 January 1994
• Docket Number: No. 92-01001,92-01001
• Citation: 630 So.2d 224
• Parties: 19 Fla. L. Weekly D136 Tammy HENDERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 224

630 So.2d 224

19 Fla. L. Weekly D136

Tammy HENDERSON, Appellant, v. STATE of Florida, Appellee.

No. 92-01001.

District Court of Appeal of Florida,

Second District.

Jan. 14, 1994.

Julianne M. Holt, Public Defender, and Rick B. Levinson, Asst. Public Defender, Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

ALTENBERND, Judge.

Tammy Henderson appeals the 3-year term of probation imposed after her violation of probation in case number 91-3197. We affirm.

On March 20, 1991, the state charged Ms. Henderson in case number 91-3197 with possession of cocaine, possession of drug paraphernalia, and prostitution. She pleaded guilty to the charges, and the trial court sentenced her for possession of cocaine to 3 1/2 years' prison followed by 1 1/2 years' probation. This sentence was permitted under the guidelines. She received other sentences for the remaining offenses, but those sentences are not relevant to this appeal.

Ms. Henderson violated probation in this case and in an earlier case. On February 20, 1992, the trial court sentenced her to 5 years in prison in the earlier case. That sentence is not challenged in this appeal. In case number 91-3197, she received 3 years' probation for possession of cocaine.

The 3-year term of probation is within the 5-year statutory maximum penalty for possession of cocaine. Section 893.13(1)(f), Fla.Stat. (1991). Although we cannot determine from this record the exact amount of time that the defendant has spent in prison or on probation for this offense, it is obvious that such time was less than 2 years because this sentencing hearing occurred 11 months after the offense. Accordingly, this 3-year term of probation is clearly within the statutory maximum penalty for possession of cocaine even in light of our recent en banc decision in Summers v. State, 625 So.2d 876 (Fla. 2d DCA 1993).

Affirmed.

CAMPBELL, A.C.J., and THREADGILL, J., concur.