Poore v. State

• Decision Date: 05 February 1987
• Docket Number: No. 85-1306,85-1306
• Citation: 503 So.2d 1282,12 Fla. L. Weekly 450
• Parties: 12 Fla. L. Weekly 450 Lonnie POORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1282

503 So.2d 1282

12 Fla. L. Weekly 450

Lonnie POORE, Appellant, v. STATE of Florida, Appellee.

No. 85-1306.

District Court of Appeal of Florida Fifth District.

Feb. 5, 1987.

Rehearing Denied March 17, 1987.

James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

The defendant was originally classified as a youthful offender under section 958.04, Florida Statutes (1981), and sentenced on September 9, 1982, to confinement for a period (term) of four and one-half years less credit for 123 days of jail time. The sentence provided that after completion of a specific period of incarceration, to-wit: two and one-half (2 1/2) years, the defendant would be released from incarceration and placed on probation for a period of two (2) years. The judgment and sentence expressly provided that if the defendant violated the conditions of his probation "the Court may revoke your probation and require you to serve the balance of said sentence." (emphasis supplied) After serving the two and one-half year initial period of confinement, the defendant was released from confinement and commenced his probationary period. In 1985 he pled guilty to violating his probation and elected to be sentenced under the sentencing guidelines. ¹ On August 14, 1985, the trial court imposed a sentence which the defendant appeals as being an improper departure sentence under the sentencing guidelines. We reverse and vacate the sentence of August 14, 1985, not because it is an improper guideline departure sentence but because it should not have been imposed at all.

Prior to the legislative adoption in 1941 of the concept of probation, after a verdict or plea of guilty in a criminal case, the defendant was either sentenced to confinement in jail or prison (or to pay a fine or both confinement and fine) or the sentencing process was continued or deferred for a period of time or, more commonly, indefinitely ("continued from day to day and term to term") on the condition of "good behavior." The latter practice was sometimes erroneously called a "withheld sentence." ² If during such period of deferment of sentencing the defendant again broke the law he was merely haled into court and sentenced as to the original offense. Probation was intended to take the place of the old practice of deferring sentencing. ^{3 3} Section 948.01(3), Florida Statutes, specifically provides that when a sentencing court decides to place a defendant on probation rather than to sentence him "it shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation." (emphasis supplied) When a defendant has been placed on probationary status in lieu of being sentenced and the court determines that he has violated a condition of his probation, section 948.06(1), Florida Statutes, provides that the court shall adjudge the probationer or offender guilty (unless he has previously been adjudged guilty) "and impose any sentence which it might have originally imposed before placing the probationer on probation...." (emphasis supplied) This explains why being placed on probation is an alternative to being sentenced and why a defendant is not "sentenced" to probation and why probation is a "case disposition" but is not a "sentence." More than semantics is involved. Constitutionally a defendant can be sentenced but once as to "the same offense." ⁴ In the usual case where probation is first tried as a case disposition, that one sentence is imposed after a violation of probation has occurred. This is not so as to a split sentence.

The sentence imposed on the defendant in this case on September 9, 1982, was a true split sentence. ⁵ When imposed the authority for a split sentence was section 948.01(4), Florida Statutes (1981), which provided as follows:

(4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court. (emphasis supplied)

Since the imposition of the original sentence in this case, both section 948.01 and section 958.04 have been amended and sentencing guidelines have been adopted, but such amendments and changes, are not, of course, relevant to a proper determination of the nature of the original sentence imposed in this case. ⁶

There has been much confusion as to the nature of a true "split sentence" and how it works. In a "split sentence" case, as in all other cases, only one valid sentence is ever imposed. It is for incarceration; it is imposed at the original sentence hearing; and it is for a specific total period or term of incarceration that the defendant will, under any turn of events, ever have to lawfully serve in confinement for the offense for which he is being sentenced. However, instead of leaving the sentence to be executed and served in one continuous unbroken period of time, as in the usual sentence of confinement, in a "split sentence," at the original sentencing the sentencing court goes further and provides that after the defendant has completed actual service of some specified portion of the total specified term of confinement, the execution and actual service of the remainder of the total specific sentence of confinement already imposed is "stayed and withheld" and it is directed that the defendant then be released from actual confinement and placed on probation or in a community control program. If the defendant successfully performs during the period of probation (or community control) he never has to serve the remainder portion of the specified total period of incarceration that, during such probationary period, hangs over his head like the Sword of Damocles. However, if after the defendant has served the initial specified portion of his sentence of confinement and has been released on probation or community control and violates a condition of such probation or community control, the trial court merely finds and adjudicates the fact that the probation or community control has been violated and recommits the defendant to confinement to serve the remainder of the sentence originally imposed. The trial judge does not resentence the defendant or impose a new, or second, or different, sentence at all. When the defendant violates a condition of probation or community control which is part of a split sentence, that violation is not the basis for an original sentencing, as it is when a defendant is originally placed on probation or community control in lieu of confinement. The subsequent violation of probation or community control in a split sentence serves only to eliminate the condition under which defendant was released from confinement under the original sentence and the defendant is not resentenced but is recommitted to the Department of Corrections for service of the remainder of that original sentence. Although there may be two commitments (see § 944.17, Fla.Stat.) as to one split sentence when, after having served some time under a prior commitment, a defendant violates probation or community service under a split sentence and is recommitted for service of the remainder or balance of that sentence; only one--the original--sentence is ever imposed. The language in section 948.06(1), Florida Statues, to the effect that after probation or community control is revoked the court shall "impose any sentence which it might have originally imposed" before placing the offender on probation or community control is applicable only to the usual case where a defendant is originally placed directly on probation or community control and has no applicability to split sentence provisions which were much later added and now exist as section 948.01(8), Florida Statutes (1985).

There is no authority or necessity to impose a second sentence following a valid prior split sentence for the same conviction or offense and to do so invites problems such as are raised in this case as well as more serious constitutional double jeopardy and due process problems. The defendant had no right to elect to be sentenced or resentenced under the sentencing guidelines because he had no right to be sentenced a second time at all. Following an adjudication that the defendant had violated a probationary condition of his conditional release from confinement under his split sentence the trial court had no authority to impose a new second sentence for the same offense and needed only to direct the clerk to issue a new uniform commitment form and to deliver it, together with a certified copy of the probation violation adjudication, and of the original judgment and sentence, to the sheriff for his use under section 944.17(5)(a), Florida Statutes, in returning the defendant into the state correctional system.

Brooks v. State, 478 So.2d 1052 (Fla.1985); Lynch v. State, 491 So.2d 1169 (Fla. 4th DCA 1986); Solomon v. State, 490 So.2d 1025 (Fla. 1st DCA 1986), rev. denied 500 So.2d 545 (Fla.1986); Crosby v. State, 487 So.2d 416 (Fla. 2d DCA 1986); Hill v. State, 486 So.2d 1372 (Fla. 1st DCA 1986), and other cases are youthful offender cases in which the courts were concerned with the applicability of the four and six year limitations formerly contained in section 958.05(2), Florida Statutes (1983), following revocation of a community control program. Two apropos questions are: Why were those cases concerned with the legality of the length of a new sentence imposed after revocation of a community control program if it is correct that, as...