Villery v. Florida Parole and Probation Commission

• Decision Date: 30 October 1980
• Docket Number: No. 57935,57935
• Citation: 396 So.2d 1107
• Parties: Lula M. VILLERY, Petitioner, v. The FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
• Court: Florida Supreme Court

Page 1107

396 So.2d 1107

Lula M. VILLERY, Petitioner, v. The FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.

No. 57935.

Supreme Court of Florida.

Oct. 30, 1980.

As Corrected on Denial of Rehearing April 23, 1981.

Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, Miami, for petitioner.

Michael H. Davidson, Gen. Counsel for the Florida Parole and Probation Commission, Tallahassee, for respondent.

SUNDBERG, Chief Justice.

This suit raises questions concerning a prisoner's eligibility for parole under section 947.16(1), Florida Statutes (1979), when he or she has been incarcerated as a special condition of probation pursuant to sections 948.01(4) and 948.03(2), Florida Statutes (1979). Our construction of Florida's parole and probation statutory scheme will obviate the need for disposition of these questions.

Petitioner Lula M. Villery is presently a prisoner in the custody of the Florida Department of Corrections. She had pleaded guilty to five counts of knowingly issuing worthless checks in excess of fifty dollars in violation of section 832.05, Florida Statutes. The trial court withheld adjudication of guilt and imposition of sentence and placed petitioner on concurrent terms of probation for each charge, the longest of which ran two and one-half years. Following a probation violation hearing, the court adjudicated petitioner guilty of the charges and extended her probation to five years, with two and one-half years incarceration being imposed as a special condition of each probation. The jail terms were to run concurrently with two days credit being given for time served in the Dade County jail prior to the modified probation order. Because petitioner was imprisoned pursuant to a probation condition rather than a sentence, respondent Parole and Probation Commission informed petitioner that she could not be considered for parole. As a result, petitioner seeks a writ of mandamus from this Court compelling respondent to exercise its statutory duty to determine her eligibility for parole pursuant to section 947.16(1), Florida Statutes (1979). We issued an order to respondent to show cause why the writ should not be granted. Jurisdiction vests in this Court under article V, section 3(b)(5), Florida Constitution (1972).

Section 947.16(1), Florida Statutes (1979), states that every person whose sentence or cumulative sentences equal or exceed one year shall be eligible for parole. The section provides in full:

(1) Every person who has been, or who may hereafter be, convicted of a felony or who has been convicted of one or more misdemeanors and whose sentence or cumulative sentences total 12 months or more, who is confined in execution of the judgment of the court, and whose record during confinement is good, shall, unless otherwise provided by law, be eligible for consideration for parole. An inmate who has been sentenced for an indeterminate term or a term of 5 years or less shall have an initial interview conducted by a hearing examiner panel within 6 months after the initial date of confinement in execution of the judgment. An inmate who has been sentenced for a minimum term in excess of 5 years shall have an initial interview conducted by a hearing examiner panel within 1 year after the initial date of confinement in execution of the judgment. An inmate convicted of a capital crime shall be interviewed at the discretion of the commission. As used in this section, the term "confined" shall be deemed to include presence in any appropriate treatment facility, public or private, by virtue of transfer from the Department of Corrections under any applicable law.

Petitioner takes the position that incarceration as a condition of probation is a "sentence" for purposes of eligibility for parole consideration under section 947.16(1). Petitioner acknowledges the general statement in McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978), that incarceration imposed as a condition of probation does not constitute a sentence. However, petitioner refers us to Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979), where the same court expressed its doubts on whether a lengthy prison term (nine and one-half years) could be imposed as a valid condition of probation when it was imposed for punitive rather than rehabilitative purposes, and when such a device served to divest the Parole Board of its exclusive authority to parole a prisoner. Petitioner argues that unless the word "sentence" in section 947.16(1) is construed to include incarceration imposed as a condition of probation, it will violate the separation of powers clause of the Florida Constitution ¹ by permitting the judiciary rather than the Parole and Probation Commission to determine the length of time a criminal defendant will in fact be required to serve in jail. In addition, petitioner argues that to classify her differently because her incarceration is labeled a "condition of probation" rather than a "sentence" would deprive her of equal protection under the Federal and Florida Constitutions ² since there is no rational basis for such a classification.

To respond to the issues presented here we must revisit our decision in State v. Jones, 327 So.2d 18 (Fla.1976), in which we treated the subject of incarceration as a condition of probation, also known as the split sentence probation alternative. First, however, it will be helpful to note the statutory provisions authorizing incarceration as a condition of probation.

Section 948.01, Florida Statutes (1979), authorizes the trial court to withhold imposition of sentence on a criminal defendant and instead place him on probation when it appears to the court that the defendant is not likely again to engage in a course of criminal conduct and the ends of justice do not require that the defendant presently suffer the penalty imposed by law. Section 948.03(1), Florida Statutes (1979), lists the terms and conditions of probation which may be imposed on a defendant. Section 948.03(2), Florida Statutes (1979), states that the enumeration of the terms and conditions in subsection (1) does not prevent the imposition of other conditions the court may consider proper. One of these other possible conditions includes incarceration as provided in section 948.01(4), Florida Statutes (1979):

(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.

In State v. Jones, supra, we approved the so-called split sentence alternative where incarceration as a condition of probation is followed by a period of probation without incarceration. In doing so, we rejected the assertion that the trial judge must first impose a total sentence immediately followed by the withholding of a part of that sentence for use in the event probation is violated. We summarized our holding in the case as follows:

In conclusion, we hold (1) the trial court may place a defendant on probation and include, as a condition, incarceration for a specific period of time within the maximum sentence allowed; (2) the trial court may revoke, revise, or modify for cause the probation and incarceration provision at any time during the period that said order is in force and impose any sentence which might have been originally imposed; (3) upon revocation, a defendant must be given credit for any period of time spent in jail pursuant to a split sentence probation order.

Id. at 25 (footnote omitted). ³ We adhere to points (2) and (3) of our holding in Jones, but for the reasons which follow we recede from point (1) and hold that the maximum period of incarceration which may be imposed as a condition of probation is up to, but not including, one year.

Two basic alternatives are available to the trial judge at the time of sentencing. He may either sentence the defendant or he may place him on probation. The term "sentence" is defined in rule 3.700 of the Florida Rules of Criminal Procedure as "the pronouncement by the Court of the penalty imposed upon a defendant for the offense of which he has been adjudicated guilty." Generally, a fine or a sentence of imprisonment or both is the "penalty" which may be imposed. Rule 3.790(a) of the Florida Rules of Criminal Procedure states that the pronouncement and imposition of a sentence of imprisonment shall not be made upon a defendant who is placed on probation regardless of whether he is adjudicated guilty. This rule is consistent with section 948.01(3), Florida Statutes (1979), which requires the court to stay and withhold the imposition of a sentence in placing a defendant on probation. Only after probation is revoked may pronouncement and imposition of a sentence be made upon a defendant. Fla.R.Crim.P. 3.790(b). In such event the court may impose any sentence which it might have originally imposed before placing the defendant on probation. § 948.06(1), Fla.Stat. (1979).

Once a sentence is imposed, a defendant falls within the jurisdiction of the Parole and Probation Commission under the authority granted to the Commission pursuant to section 947.16, Florida Statutes (1979). ⁴ If, however, sentence is withheld and the defendant is placed on probation, he is generally committed to the supervision and control of the Department of Corrections. The court which placed the defendant on probation retains jurisdiction over the defendant for purposes of terminating, modifying or revoking probation. See §§ 948.04-.06, Fla.Stat. (1979).

We agree with the District Court of Appeal, Third District, in McGowan v. State, supra, that incarceration as a...