Horner v. State

• Decision Date: 15 April 1993
• Docket Number: No. 79840,79840
• Citation: 617 So.2d 311
• Parties: 18 Fla. L. Week. S247 Shirley Gayle HORNER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 311

617 So.2d 311

18 Fla. L. Week. S247

Shirley Gayle HORNER, Petitioner, v. STATE of Florida, Respondent.

No. 79840.

Supreme Court of Florida.

April 15, 1993.

James Marion Moorman, Public Defender, and Julius Aulisio, Asst. Public Defender, Bartow, for petitioner.

Robert A. Butterworth, Atty. Gen., William I. Munsey, Jr., Asst. Atty. Gen., Tampa, and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for respondent.

BARKETT, Chief Justice.

We review Horner v. State, 597 So.2d 920 (Fla. 2d DCA1992), based on conflict with Lanier v. State, 504 So.2d 501 (Fla. 1st DCA1987), and Washington v State, 564 So.2d 563 (Fla. 1st DCA1990). ¹ The issue is whether section 948.01(8), Florida Statutes (1989), which precludes a time gap in a probationary split sentence, ² prohibits a separation between incarceration and probation as to each case of a multiple-case sentence, or merely bars a period of freedom between portions of an individual's overall sentence. We conclude that the latter interpretation is correct and approve the decision of the court below.

Shirley Gayle Horner entered a plea on three separate cases and was sentenced to eighteen months' imprisonment followed by three-and-one-half years' probation concurrent on each case. The cases all involve third-degree felonies. The first case concerns a worthless check issued in 1983. The second case stems from a theft in February 1988. The third case involves seven worthless checks written in February 1988.

While on probation, Horner issued additional worthless checks, and the State sought revocation of her probation. Horner pleaded no contest to the alleged violations. At the May 1991 revocation hearing, the trial court sentenced Horner to concurrent terms of three-and-one-half years' incarceration in the first two cases. Following imprisonment, Horner was to serve a one-year term of probation for the second case and a consecutive one-year probationary period for the first case. These probationary periods were to be followed by four consecutive five-year probationary terms for the third case. ³ In sum, Horner was sentenced to three-and-one-half years of incarceration, followed by twenty-two years' probation. ⁴ The sentence length was affirmed on appeal.

Horner urges that her sentence violates section 948.01(8), which states in pertinent part: "Whenever ... the court ... at the time of sentencing, impose[s] a split sentence whereby the defendant is to be placed on probation ... upon completion of any specified period of such sentence[,] ... [t]he period of probation ... shall commence immediately upon the release of the defendant from incarceration...." Horner argues that the issuance of a one-year probationary period for the first case consecutive to the one-year probationary period for the second case violates the statute in that the probation for the second case creates an impermissible time gap between incarceration and probation for the first case. Horner further argues that all probation after this gap, including the last twenty years, is rendered invalid by the existence of the gap.

Horner urges this court to adopt the holding in Washington v. State, in which the district court found that a concurrent four-and-one-half year sentence followed by consecutive six-month probationary periods created a time gap for one of the sentences. The court found that the gap violated section 948.01(8) because the latter probationary period did not immediately follow the incarceration for the same offense.

We find this argument unpersuasive. The statute requires that the incarcerative portions of the sentencing be completed before the non-incarcerative portions begin. See, e.g., Mitchell v. State, 594 So.2d 823 (Fla. 1st DCA1992); Humphrey v. State, 579 So.2d 335 (Fla. 2d DCA1991); Sanchez v. State, 538 So.2d 923 (Fla. 5th DCA1989). "A probationary term that falls between or interrupts an incarcerative sentence or sentences is illegal." Humphrey 79 So.2d at 336. Horner's interpretation of the statute would limit probation to the remainder of the maximum term of the most serious crime in a sentencing where more than one case is adjudicated. Here, probation would not be able to exceed one-and-one-half years, the remainder of the maximum term for a third-degree felony after imprisonment for three-and-one-half years.

The immediacy requirement of the statute necessitates a correspondence between the...