Carr v. StateCarr v. State
This is an appeal from a sentence. Under the sentencing guidelines appellant scored within thе seven to nine-year range. The trial judge sentenced him to forty years in prison and suspended thirty-two years, thus requiring him to serve eight years of incarceration. He was also given a total of twenty years probation on top of the forty years.1 We construe this sentence as a true split sentencе of forty years imprisonment split between eight years incarceration and thirty-two years of suspended probation. The trial court‘s attempt to impose an additional twenty years of probation on top of this split sentence is unauthorized and void.
Because the principal crime appellant committed was robbery with a firearm, which carries a life sentence, his sentence including the combination of incarceration and suspended probation, does not exceed the statutory maximum.
Here appellant faced life imprisonment for the armed robbery and five years each for the four burglaries. That adds up to life рlus twenty years maximum exposure under general law.
Appellant‘s sentence, as modified, is legal because it does not provide for more or less than that recommended by the guidelines for the incarcerative portion and does not exceed the maximum provided by general law when all portions, prison and non-prison, are combined. The split sentence of forty years is therefore affirmed but the additional twenty years of probation is vacated.
AFFIRMED in part and VACATED in part.
COBB, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge, dissenting.
The defendant was convicted of five separate offenses: (1) Case 87-5018 — robbery with a firearm (
The Defendant is hereby committed to the custody of the Department of Corrections ... for a term of 40 years suspend 32 years ... followed by a term of 20 years on probation under the supervision of the Department of Corrections according to the terms and conditions of probation set forth in a separate order entered herein.
This sentence is ambiguous and illegal and should be vacated.
First, the sentence is for confinement for 40 years, notwithstanding the words “susрend 32 years” and “followed by a period of 20 years on probation.” Forty years’ confinement is a departure from the recommended guidelines sentence of 7-9 years, and this departure sentence is not accompanied by a written statement of clear and convincing reasons as is rеquired by the guidelines (
When a sentence of confinement has been pronounced in open court and entered in the minutes of the court (or docketed if there are no minutes), the defendant has been “sentenced” and, subject only to being vacated on appeal or in a propеr post-conviction proceeding, remains sentenced whether or not the sentence is ever fully or partially executed or actually served. The “execution” or carrying out of a sentence which has been pronounced is a matter separate and completely distinct from the legal effect or “lawfulness” of the sentence as pronounced. Chapter 921, Florida Statutes, relates to sentences; Chapter 922, Florida Statutes, relates to execution of sentences. Whether a sentence is fully executed, partly executed, or, for some reason, nevеr executed, has nothing to do with the lawfulness or legality of the sentence. A sentence may not be pronounced but may be lawfully stayed and withheld and the defendant placed on probation under
The illegality of the sentence in this case is somewhat concealed by the ambiguity inherent in it. To what doеs the forty years refer? What is the effect of the language “suspend 32 years“? What happens to the 8 year difference between the 40 year sentence and the 32 years suspended? Where does the 20 year probation fit in? What is meant by the word “suspend“? How is a “suspended” sentence “unsuspended“? When that does occur, what then happens? Can the defendant, under any turn of events, be made to serve more than 8 years in prison? If so, when, if ever, must a court find the clear and convincing reasons the guidelines rule states is necessary for a valid departure sentence? There are many possible сonstructions of this ambiguous sentence, each with a legal infirmity, and the ambiguity itself constitutes a separate infirmity. Some possibilities are:
(1) A plain or straight eight year sentence of incarceration. The majority opinion subtracts the 32 years from the 40 year sentence of confinement to get an eight year net incarceration which is found to fall within the recommended guidelines sentence of 7-9 years. Such a sentence would be within the sentencing guidelines and within the statutory maximum for robbery (life imprisonment) and would be entirely lawful, but the sentence of 40 years and the reference to 32 years suspended and 20 years probation would have to be ignored or “construed” to be of little or no legal effect. Surely the sentence as pronounced means something more than a simple eight year sentence of imprisonment.
(2) A 40 year sentence of incarceration. If the reference to the suspended 32 years and the 20 years’ probation is legally insufficient to reduce the sentence to a simple 8 year sentence, then the 40 year sentence of incarceration remains. Such a sentence would be within the statutory maximum for the robbery offense (life imprisonment) but constitutes a deрarture sentence and is illegal in this case because it was not accompanied by written, clear and convincing reasons.
(3) A split sentence. By the words “suspend 32 years,” and the reference to 20 years’ probation, the trial court may have intended to pronounce a split sentence as authorized by
The majority opinion declares the provision for 20 years’ probation to be unauthorized and void yet holds that the resulting 40 year sentence divided into an 8 year period to be served and a “suspended” 32 year period to be “a true split sentence.” A casual reading of the only statute (
(4) A “suspended” sentence. The trial court could have intended to pronounce a forty year sentence but also have intended to merely “suspend” execution of the last 32 years. Apparently that is what the majority opinion approves. If so, this so-called “suspended sentence,” sometimes called a “withheld” sentence or an “inactive” sentence, contravenes
In any event, the sentence, as modified and approved by the majority opinion, fails to sentence the defendant as to the four burglary charges of which he was convicted and the sentence thereby violates the dictates of
The defendant was sentenced to 40 years in prison. Neither by construing it as a legally permissible “split sentence” nor an illegal “suspended,” “reserved,” “withheld,” or “inactive” sentence, can the 40 year prison sentence be deemed, or converted into, a sentence of only 8 years’ incarceration and within the recommended guidelines range of 7-9 years. The defendant is еntitled to have a lawful and unambiguous sentence. The sentence in this case is “ambiguous” and an illegal departure sentence and should be vacated and the cause remanded for resentencing.
Notes
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(8) 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, impose a split sentence whereby the defendant is to be placed on probation or, with respect to any such felony, into community control upon completion of any specified period of such sentence which may include a term of years or less. 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 or into community control after serving such period as may be imposed by the court. The period of probation or community control shall commence immediately upon the release of the defendant from incarceration, whether by parole or gaintime allowances. [emphasis added]