Mitchell v. State, 91-2167

• Decision Date: 25 February 1992
• Docket Number: No. 91-2167,91-2167
• Citation: 594 So.2d 823
• Parties: John Wayne MITCHELL, Appellant, v. STATE of Florida, Appellee. 594 So.2d 823, 17 Fla. L. Week. D598
• Court: Florida District Court of Appeals

Page 823

594 So.2d 823

John Wayne MITCHELL, Appellant, v. STATE of Florida, Appellee.

No. 91-2167.

594 So.2d 823, 17 Fla. L. Week. D598

District Court of Appeal of Florida First District.

Feb. 25, 1992.

Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

This appeal is taken from a sentencing error which occurred in the context of a sentencing plan involving incarceration and probation. The error, which is apparent on the face of the record, was occasioned by imposition of consecutive sentences, which had the effect of interrupting periods of community control with a period of probation. The state agrees that the sentencing plan devised by the trial court was improper, and ordinarily would require reversal and remand for resentencing. However, the state urges that since this error was not brought to the trial court's attention, this court should dismiss the appeal without prejudice, or relinquish jurisdiction to the trial court to allow the trial court an opportunity to correct the sentence pursuant to a motion filed under Florida Rule of Criminal Procedure 3.800(a).

Where a sentencing plan involves periods of incarceration or community control followed by periods of probation, the statutes do not authorize intermittent periods of incarceration and probation. Rather, the incarcerative portions of the sentences must be served in a continuous period, to be followed immediately by the non-incarcerative portion of the sentence. Washington v. State, 564 So.2d 563 (Fla. 1st DCA 1990); Lanier v. State, 504 So.2d 501 (Fla. 1st DCA 1987); Sanchez v. State, 538 So.2d 923 (Fla. 5th DCA 1989). See also Porter v. State, 585 So.2d 399 (Fla. 1st DCA 1991).

Since the sentencing plan imposed in this case is not authorized by statute or case law, the matter must be remanded with directions to sentence appellant in such manner that the incarcerative and community control portions of his sentence are served in a continuous uninterrupted stretch. See Lanier, 504 So.2d at 503. The state's argument that the court ought not entertain appeals from sentencing errors that are readily correctable pursuant to a rule 3.800(a) motion has appeal. However, as the state recognizes, appellant is entitled to a direct appeal of the sentencing error in this case. State v. Whitfield, 487 So.2d 1045 (...