Ashe v. State

548 So. 2d 291 | Fla. Dist. Ct. App. | 1989

Lead Opinion

PER CURIAM.

This is an appeal of a revocation of probation. The defendant/appellant, Christopher Ashe, was convicted of grand theft and strong arm robbery in 1985. He was sentenced to a term of six years in the Department of Corrections for the grand theft. Four years of the term was to be served in prison and the remainder was to be served on probation for two years, with credit for 128 days served.¹ Additionally, Ashe was sentenced to fifteen years on probation for strong arm robbery, to run consecutive to the sentence for grand theft. On July 7, 1986, Ashe was released on furlough on an early release type of program under which he was required to report to the corrections department. The record indicates that Ashe completed the confinement portion of his sentence. Thereafter Ashe failed to report to the correct office for the probation portion of his sentence and absconded from the jurisdiction. He was arrested in October, 1986 in California while in possession of stolen property. Affidavits of violation of probation were filed against Ashe in Florida. At the revocation hearing Ashe admitted that he had gone to California in violation of the probation. The trial court found Ashe to be in violation and revoked his probation. Ashe was sentenced on the grand theft to five years imprisonment with credit for 715 days served. On the robbery he was sentenced to fifteen years in prison with credit for 715 days time served.

Ashe makes two arguments on appeal. We find it necessary to address only the second argument concerning the sentence imposed after revocation. Ashe argues that pursuant to Poore v. State, 531 So.2d 161 (Fla.1988) the trial court erred in sentencing him to a prison sentence greater than the suspended portion of his original split sentence, that is, greater than two years.

In Poore the defendant was sentenced to four-and-one-half years in the Department of Corrections with two-and-one-half years on probation. After the defendant served the incarceration portion of his sentence he violated his probation and the trial court imposed a sentence of four-and-one-half years of incarceration with credit for time served. On appeal the supreme court vacated the sentence. The supreme court explained that jeopardy attaches when a prisoner begins serving a sentence. That original sanction cannot be increased unless there are subsequent events which throw new light on the defendant’s conduct. As a result, if a true split sentence is imposed as the original sentence, then “the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence.” 531 So.2d at 164 (emphasis added). In the instant case the trial court erred in sentencing Ashe to a term greater than the suspended portion of his original sentence.

Reversed and remanded for further consistent proceedings.

GLICKSTEIN and WALDEN, JJ., concur. GARRETT, J., concurs specially with opinion.

1 . This was a “true split sentence” since it consisted of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for the suspended portion. Poore v. State, 531 So.2d 161, 164 (Fla.1988).

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Concurrence Opinion

GARRETT, Judge,

concurring specially.

On February 6,1985 appellant entered no contest pleas to charges of grand theft and robbery. As a youthful offender, on the grand theft charge appellant received a “split sentence” of four years imprisonment with jail credit of 128 days to be followed by two years of community control. On the robbery charge appellant was placed on probation for a period of fifteen years to run consecutive.

On March 3, 1985 appellant arrived at the Indian River Correctional Institution (IRCI) to begin serving the prison portion of his “split sentence.”

After serving 432 days at IRCI, on May 9, 1986 the Department of Corrections (DOC) transferred appellant to a community work release program at the Lake City correctional facility.

Fifty-nine days later, on July 7, 1986 DOC assigned appellant to live with his mother under supervised community release.

On October 1,1986 a Florida correctional probation officer wrote appellant that his term of supervised community release had been completed as of that date. The letter concluded as follows: “Best wishes for a very successful future.”

On October 4, 1986 California authorities arrested appellant for auto theft.

On October 23, 1986 DOC filed an affidavit alleging appellant violated probation by failing to report to his probation office within seventy-two hours of being released on July 7, 1986 and by committing the California crime.

California sentenced appellant to two years in prison and in January of 1988 extradited him to Florida.

On March 23, 1988 the trial judge revoked appellant’s probation and imposed a five-year jail sentence on the grand theft charge and a fifteen-year jail sentence on the robbery charge to run consecutive with credit for 715 days time served.

Like Poore and Chapman, appellant had completed the imprisonment portion of his “split sentence” before the probation portion was revoked. Termination of appellant’s supervised community release completed the prison part of his “split sentence.” It should be noted the state revoked appellant’s probation (community control), not his prison release status.

Except as limited by the guidelines one-cell upward increase, with credit for any appropriate time served and earned gain-time, the trial judge could resentence appellant to serve all of the two-year probation period of the original grand theft “split sentence” and all of the consecutive fifteen-year probation period of the original robbery sentence. The appellant could not be resentenced to serve any additional jail time on the completed imprisonment portion of his “split sentence.” See State v. Green, 547 So.2d 925 (Fla.1989); Franklin v. State, 545 So.2d 851 (Fla.1989).