Bickowski v. State

Sep 1, 1988
No. 87-2266
Versions:530 So. 2d 470
13 Fla. L. Weekly 2074
1988 Fla. App. LEXIS 3831
1988 WL 89724

Lead Opinion

COBB, Judge.

In January, 1987, Albert Bickowski pled guilty to grand theft, a third degree felony, and was given five years probation. On November 13,1987, he pled guilty to violating that probation, was adjudicated guilty of grand theft, and sentenced to a “true split sentence” of five years with forty months suspended after service of twenty months in the Department of Corrections. See McKee v. State, 528 So.2d 417 (Fla. 5th DCA 1988). The maximum guideline incar-cerative period was thirty months.

The November 13th sentence was legal. See Carr v. State, 528 So.2d 406 (Fla. 5th DCA 1988); Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988). Unfortunately, in an order filed December 10, 1987, the trial judge entered a nunc pro tunc “Order of Modification of Probation,” which apparently purports to add an additional forty months of probation to follow the forty months of probation imposed on November 13, 1987, as part of the split sentence.

The December, 1987 nunc pro tunc order was void since sentence for the grand theft (the only crime before the court for sentencing purposes) had already been imposed. That order is quashed. The sentence is otherwise affirmed.

SENTENCE AFFIRMED; ORDER OF MODIFICATION QUASHED.

*471ORFINGER, J., concurs. COWART, J., concurs in part, dissents in part with opinion.



Concurrence in Part

COWART, Judge,

concurring in part, dissenting in part.

The nunc pro tunc Order of Modification. of Probation filed December 10, 1987, is so cryptic and unclear that its intended purpose and effect cannot be determined. It should be declared void. The original sentence of five years’ incarceration, while split with 20 months to be immediately served and the balance of 40 months suspended subject to the successful completion of probation, in my opinion, exceeds the maximum guideline recommended sentence of 30 months for the reasons set forth in the dissents in Carr v. State, 528 So.2d 406 (Fla. 5th DCA 1988); McKee v. State, 528 So.2d 417 (Fla. 5th DCA 1988); Gulker v. State, 528 So.2d 434 (Fla. 5th DCA 1988); Hankey v. State, 529 So.2d 736 (Fla. 5th DCA 1988); Lloyd v. State, 528 So.2d 1219 (Fla. 5th DCA 1988) and Williams v. State, 528 So.2d 453 (Fla. 5th DCA 1988).