Carter v. StateCarter v. State
SHIVERS, Judge.
Appellant‘s Motion for Rehearing is granted in part. The opinion dated April 14, 1989 is withdrawn and the following opinion is substituted therefor.
Appellant John Andrew Carter was sentenced in 1985 to five years incarceration followed by ten years probation on a charge of lewd and lascivious assault. Shortly after being released from incarceration in December 1987 due to gain-time, appellant was charged with and convicted of battery. Probation was subsequently revoked. Appellant was then sentenced to ten years incarceration followed by five years probation, and given 923 days of credit, representing both the actual time served on the original five year term of incarceration and credit for time spent in jail following his arrest for battery. He now appeals raising three issues: (1) whether the sentence imposed by the trial court upon appellant‘s violation of probation constituted a violation of double jeopardy; (2) whether the trial court erred in failing to give appellant credit for the entire term of his original sentence; and (3) whether the trial court erred in imposing court costs without affording appellant notice and an opportunity to object.
As to the first issue, we affirm the trial court‘s imposition of sentence after appellant‘s violation of probation. Since appellant was originally given a “probationary split sentence” (a period of confinement, none of which is suspended, followed by a period of probation), his new sentence does not constitute a violation of double jeopardy. Poore v. State, 531 So.2d 161 (Fla. 1988). We reverse on the second issue, however, finding that the trial court erred in granting credit only for the time
Accordingly, we affirm in part, reverse, and remand for the trial court to recalculate credit in accordance with this opinion and to give appellant the requisite notice and opportunity to object before imposing costs.
BARFIELD, J., concurs, with an opinion.
ZEHMER, J., specially concurs, with an opinion.
BARFIELD, Judge, concurring:
I concur in the result only because the decision in Green v. State, 539 So.2d 484 (Fla. 1st DCA 1989), is pending in the supreme court. Otherwise, I would ask this court to recede from Green.
In Poore v. State, 531 So.2d 161 (Fla. 1988), the supreme court made it abundantly clear that a “probationary split sentence” is an authorized sentence and is something different from a “true split sentence.” This “probationary split sentence” is not authorized by section
The practical effect of Green is to convert a “probationary split sentence” to a “true split sentence” in which the original term of confinement is always the maximum allowed by statute. In other words, in originally specifying a period of confinement, the trial court contemplates a longer period of incarceration, the upper end of which it does not disclose to the defendant, and suspends all undisclosed portions thereof during the period of probation. Such a construction would allow credit for the original confinement against the term of confinement upon recommitment, and would support Poore‘s finding of constitutionality, but would conflict with the supreme court‘s declaration that a “probationary split sentence” is different from a “true split sentence.”
Green‘s statement that the granting and forfeiture of gain time is governed by statute and is solely within the control of the Department of Corrections is correct, but I disagree with the remainder of the opinion. Since the trial court was dealing with a “probationary split sentence,” it must have been concerned only with imposing a new confinement, the previous confinement having been completed upon the earlier release from prison. This would make the “probationary split sentence” different from the “true split sentence.” Whether this is the difference the supreme court had in mind remains one of the mysteries of Poore.
The supreme court has yet to give the courts any direction on how to apply the “probationary split sentence” created by Poore, but since it is in addition to those forms of alternative disposition provided in section
It appears to me that the sentence imposed was intended to begin anew and continue for a period of ten years. I agree that it would be inconsistent to give the defendant 923 days of credit on a new sentence without also giving credit for all of the earned good time during the first five year period that was served. I do not believe the defendant is entitled to any credit against his ten year sentence, but the State has not cross-appealed that issue. It is my opinion that, if the sentence is legal, it is for a new period of ten years which is within the original statutory maximum. However, I would encourage the supreme court to revisit Poore and to abandon its notion of a “probationary split sentence,” since such a sentence is not authorized by statute.
ZEHMER, Judge (Specially concurring).
I concur in the disposition of this case made in Judge Shivers‘s opinion and write only to point out certain problems with the statutory authority for the form of sentence imposed in this case.
Affirmance of the imposition of the ten-year sentence after appellant‘s violation of probation is clearly mandated by the supreme court‘s decision in Poore v. State, 531 So. 161 (Fla. 1988). The original sentence imposed upon conviction in this case (incarceration for five years to be followed by probation for ten years) is what the supreme court characterized in that opinion as a category 3 “probationary split sentence” (“a period of confinement, none of which is suspended, followed by a period of probation“). 531 So.2d at 164. I agree to affirmance in this case only because we must follow the directive in Poore that upon violation of probation under this alternative, “section
The appealed issue in this case stems from the offender‘s successful completion of his sentence to imprisonment for five years before he violated the conditions of probation. As Judge Barfield has pointed out in his concurring opinion, section