Wayne v. State, 86-2133
| Decision Date | 03 September 1987 |
| Docket Number | No. 86-2133,86-2133 |
| Parties | 12 Fla. L. Weekly 2120 Clyde Garland WAYNE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Michael L. O'Neill, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant originally plead guilty to burglary of a structure, (section 810.02, Florida Statutes (1985)). The trial judge sentenced him to thirty months' incarceration to be followed by two and one-half years on probation. The defendant served the entire thirty months' incarceration and was released from confinement. During the following two and one-half years, a warrant for violation of probation was issued and the defendant admitted the violation of conditions of probation. The trial judge revoked the probation and resentenced him to four years' incarceration. The defendant appeals complaining that the new sentence was an unauthorized departure from the recommended guidelines sentence.
The real problem in this case is more fundamental than a mere unauthorized departure sentence. The problem is that the sentence form contained in Florida Rule of Criminal Procedure 3.986 has a proper provision for imposing a "split" sentence which is done under the appropriate statute 1 by imposing a sentence to a term of confinement, then providing that after service of some specified portion of that sentence, the balance of that sentence is to be suspended and the defendant is released from confinement and placed on probation (or community control) for a specified period. Then when the defendant violates probation (or community control), he can be recommitted under the original sentence and made to serve any portion of the suspended portion of the original confinement sentence. In such a case only one sentence is imposed and there is no double jeopardy problem.
The trouble in this case is caused by the sentence form in Rule 3.986 which also provides for what is erroneously presumed to be a second method of imposing a "split" sentence--imposing a period of confinement merely followed by a period of probation. In such a case, if the sentence of confinement is served in full before the defendant is released on probation and the defendant later violates that probation, there is no suspended portion of the original sentence of confinement left to be served. The defendant, having already been sentenced once, cannot constitutionally be sentenced a second time for the same offense merely because he has violated the probation appended to the lawful sentence of confinement. This is all explained in Poore v. State, 503 So.2d 1282 (Fla. 5th DCA 1987), rev. pending, Supreme Court Case No. 70,397. See also, Kelly v. State, 508 So.2d 788 (Fla. 5th DCA 1987).
The difference between this case and Poore is that Poore had not served the full term of his sentence of confinement when he violated probation, therefore he could be recommitted under his original sentence for further confinement. However, in this case Wayne has served his full sentence of thirty months' confinement. Therefore, there is no portion of his sentence of confinement left for...
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...third, or fourth, or any multiple sentence for "the same offense." See the dissent to Franklin v. State, receding from, Wayne v. State, 513 So.2d 689 (Fla. 5th DCA 1987).5 This should be denoted the "cat and grindstone" approach to guideline sentencing, it having been observed that a grinds......
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...to file a supplemental brief addressing the applicability of Poore v. State, 503 So.2d 1282 (Fla. 5th DCA 1987), 2 and Wayne v. State, 513 So.2d 689 (Fla. 5th DCA 1987). 3 In Poore, a youthful offender was sentenced to a term of four and one-half years, with the incarcerative portion of the......
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Johnson v. State, 89-2264
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...Carson and Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, for respondent. BARKETT, Justice. We have for review Wayne v. State, 513 So.2d 689 (Fla. 5th DCA 1987), based on express and direct conflict with Brooks v. State, 478 So.2d 1052 (Fla.1985); Hill v. State, 486 So.2d 1372 (Fla. 1s......