Kline v. State, BH-90

• Decision Date: 25 June 1987
• Docket Number: No. BH-90,BH-90
• Citation: 509 So.2d 1178,12 Fla. L. Weekly 1572
• Parties: 12 Fla. L. Weekly 1572 Billy Allen KLINE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1178

509 So.2d 1178

12 Fla. L. Weekly 1572

Billy Allen KLINE, Appellant, v. STATE of Florida, Appellee.

No. BH-90.

District Court of Appeal of Florida First District.

June 25, 1987.

Tyrone E. May and Martha B. Blackmon, Panama City, for appellant.

Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

This cause is before us on appeal from a sentence imposing two consecutive 364-day county jail terms on appellant for commission of a felony and a misdemeanor. Appellant contends that this is an illegal sentence, in violation of section 922.051, Florida Statutes (1985), and impermissibly departs from the sentencing guidelines recommended sentence without a statement of clear and convincing reasons. We reverse and remand for resentencing.

Appellant pled nolo contendere and was adjudicated guilty of sexual battery, a second degree felony, in violation of section 800.04, Florida Statutes (1985), and child abuse, a first degree misdemeanor, in violation of section 827.04(2), Florida Statutes (1985). A sentencing guidelines scoresheet prepared for the felony conviction reflected a recommended sentence of "any nonstate prison sanction." Appellant was sentenced on the misdemeanor conviction to 364 days in the county jail, and on the felony conviction to 15 years' probation, with the condition that 364 days of incarceration in the county jail were to be served consecutive to the misdemeanor sentence. Appellant contests the consecutive county jail terms on the basis of section 922.051, Florida Statutes (1985), which he asserts proscribes any county jail term exceeding one year, regardless of whether sentence is withheld on one of the offenses and the term is imposed as a condition of probation.

Section 775.08, Florida Statutes (1985), provides:

When used in the laws of this state:

(1) The term "felony" shall mean any criminal offense that is punishable under the laws of this state ... by death or imprisonment in a state penitentiary. "State penitentiary" shall include state correctional facilities. A person shall be imprisoned in the state penitentiary for each sentence which, except an extended term, exceeds 1 year.

(2) The term "misdemeanor" shall mean any criminal offense that is punishable under the laws of this state ... by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year....

Appellant's conviction of the second degree felony is punishable "by a term of imprisonment not exceeding 15 years" in state prison, while his conviction for the first degree misdemeanor charge is punishable "by a definite term of imprisonment not exceeding 1 year" in a county facility. § 775.082(3) and (4), Fla.Stat. (1985).

Section 922.051 provides:

Imprisonment in county jail, term of 1 year or less.--When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of the prisoner's cumulative sentences is not more than 1 year.

It has been held that section 922.051 applies only to felony sentences and is not applicable to misdemeanor sentences. Dade County v. Baker, 265 So.2d 700 (Fla.1972); Amrein v. State, 504 So.2d 783 (Fla. 1st DCA 1987). Moreover, the sentencing guidelines apply only to felonies and are not applicable to sentences for misdemeanor violations. § 921.001(4)(a), Fla.Stat. (1985); Amrein v. State, 504 So.2d 783 (Fla. 1st DCA 1987). We find no basis for disturbing appellant's sentence on the misdemeanor charge.

Similarly, the sentence to county jail as a condition of probation on the felony charge does not constitute a departure from the recommended guidelines sentence of "any nonstate prison sanction." Committee note (d)(8) to the 1985 amendments to the guidelines, Florida Rule of Criminal Procedure 3.701 states that a nonstate prison sanction "allows the court the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone or any nonincarcerative disposition." For this reason, we find no merit to appellant's second point contending that the cumulative incarceration sentence constitutes a departure from the guidelines recommended sentence.

We now address appellant's first point contesting the validity of the felony sentence under section 922.051. The trial court was authorized to impose incarceration in county jail up to 364 days as a condition of probation on the felony conviction by section 948.03(5)(a), Florida Statutes (1985). State v. Jones, 327 So.2d 18, 24 (Fla.1976). That section explicitly authorizes incarceration in a county-owned facility; and although the statute cautions that "it is the intent of the Legislature that a county jail be used as the last available alternative for placement of an offender as a condition of probation," this provision "shall not create a right of placement for the probationer, nor shall it restrict judicial discretion in ordering such treatment or incarceration." § 948.03(5)(b), Fla.Stat. (1985). We conclude, however, that the consecutive felony sentence violates section 922.051 because it extends appellant's jail time beyond one year.

The sentence on the misdemeanor charge ordered imprisonment in county jail for 364 days. The sentence on the second degree felony charge ordered defendant placed on probation for 15 years upon the condition, among others, that defendant "spend 364 days in the Bay County Jail (consecutive to any other sentence being served) with no credit for time served as directed by probation officer." The felony sentence is, therefore, necessarily cumulative to the misdemeanor sentence and extends appellant's total jail sentence beyond one year, in violation of section 922.051, Florida Statutes (1985), for the reasons stated in Cigelski v. State, 470 So.2d 46 (Fla. 1st DCA 1985). The fact that the initial sentence of imprisonment in county jail was imposed for a misdemeanor, while both sentences in Cigelski were for felony convictions, is an immaterial difference between that case and this one. Smith v. State, 311 So.2d 775 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 35 (Fla.1976); cf., Mancebo v. State, 338 So.2d 268 (Fla. 3d DCA 1976). ¹

The supreme court decision in Dade County v. Baker, 265 So.2d 700 (Fla.1972), which adopted the dissent by Judge Carroll in Dade County v. Baker, 258 So.2d 511, 512-14 (Fla. 3d DCA 1972), supports, rather than contradicts, this conclusion. In that case, the district court of appeal majority opinion, 258 So.2d at 511, left in place the sentences for two felony convictions based on separate informations, each requiring incarceration for one year in the county jail to be served consecutively. Judge Carroll's dissent disapproved the consecutive stacking of the two felony sentences in a manner that resulted in a cumulative sentence in county jail which exceeded one year. Discussing the meaning and purpose of section 922.051, he stated:

Inspection of § 922.051 shows it is concerned with sentences for felonies, since the offenses it deals with are those for which imprisonment in the state prison is directed by statute. Section 922.051 permits the court, upon conviction of a person for such an offense, to provide for imprisonment of the person in the county jail when the sentence is for a period of not more than one year, but that statute does not permit such a sentence to provide for imprisonment to be in the county jail if by reason of another such sentence, which is being served or to which it is made cumulative, the prisoner's cumulative sentences would result in his imprisonment thereunder in the county jail for more than a period of one year. In the latter instance the statutory direction for imprisonment for such an offense to be in the state prison, together with the provisions of § 922.051, will require that the second (cumulative) sentence be served in a state prison.

(Emphasis supplied). 258 So.2d at 513. Judge Carroll did not say that the sentence being served to which the felony sentence was cumulative had, itself, to be a felony sentence. Rather, the rationale underlying his dissent is predicated on the policy of limiting incarceration in county jails to one year because of the lack of facilities and programs to treat long-term incarceration. Thus, he further stated:

I can observe no reasonable basis upon which to conclude that the policies and reasons underlying the statutory prohibition against providing for imprisonment of a defendant in the county jail for a period of more than one year, but cumulative sentences upon conviction of (felony) offenses, should be held to apply only where the cumulative sentences are imposed upon two or more convictions had under one indictment or information, and not to apply when the prohibited result is brought about by cumulative sentences resulting from convictions for offenses which were prosecuted under separate indictments or informations.

For example, policies supporting the legislative intent logically may be assumed to have included an awareness by the legislature that county jails are intended basically for short or interim periods of detention, and are lacking in facilities such as libraries, classroom instruction, occupational training, athletic or recreational facilities, and rehabilitative procedures in general as may be provided in state prisons, for benefit of those serving longer terms there. In the light of such considerations it would appear that the statutory prohibition against imposing cumulative (felony) sentences which would imprison a person in the county jail for a period of more than one year necessarily should be applicable to cumulative one year sentences for offenses that were charged and prosecuted under separate indictments or informations as well as to sentences for such offenses that result from a prosecution under a single charging instrument.

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