Horner v. StateHorner v. State
We review Horner v. State, 597 So.2d 920 (Fla. 2d DCA 1992), based on conflict with Lanier v. State, 504 So.2d 501 (Fla. 1st DCA 1987), and Washington v. State, 564 So.2d 563 (Fla. 1st DCA 1990).1 The issue is whether
Shirley Gayle Horner entered a plea on three separate cases and was sentenced to eighteen months’ imprisonment followed by three-and-one-half years’ probation concurrent on each case. The cases all involve third-degree felonies. The first case concerns a worthless check issued in 1983. The second case stems from a theft in February 1988. The third case involves seven worthless checks written in February 1988.
While on probation, Horner issued additional worthless checks, and the State sought revocation of her probation. Horner pleaded no contest to the alleged violations. At the May 1991 revocation hearing, the trial court sentenced Horner to concurrent terms of three-and-one-half years’ incarceration in the first two cases. Following imprisonment, Horner was to serve a one-year term of probation for the second case and a consecutive one-year probationary period for the first case. These probationary periods were to be followed by four consecutive five-year probationary terms for the third case.3 In sum, Horner was sentenced to three-and-one-half years of incarceration, followed by twenty-two years’ probation.4 The sentence length was affirmed on appeal.
Horner urges that her sentence violates
Horner urges this court to adopt the holding in Washington v. State, in which the district court found that a concurrent four-and-one-half year sentence followed by consecutive six-month probationary periods created a time gap for one of the sentences. The court found that the gap violated
We find this argument unpersuasive. The statute requires that the incarcerative portions of the sentencing be completed before the non-incarcerative portions begin. See, e.g., Mitchell v. State, 594 So.2d 823 (Fla. 1st DCA 1992); Humphrey v. State, 579 So.2d 335 (Fla. 2d DCA 1991); Sanchez v. State, 538 So.2d 923 (Fla. 5th DCA 1989). “A probationary term that falls between or interrupts an incarcerative sentence or sentences is illegal.” Humphrey, 579 So.2d at 336. Horner‘s interpretation of the statute would limit probation to the remainder of the maximum term of the most serious crime in a sentencing where more than one case is adjudicated. Here, probation would not be able to exceed one-and-one-half years, the remainder of the maximum term for a third-degree felony after imprisonment for three-and-one-half years.
The immediacy requirement of the statute necessitates a correspondence between the incarcerative and probationary terms, and is not based upon an individual case, but upon one sentencing event. The statute defines split sentencing with regard to the sentencing that the trial court is imposing for all cases against the defendant. Cf. Tripp v. State, 1993 WL 83094, 18 Fla. L. Weekly S166 (Fla. Mar. 25, 1993) (rejecting contention that conviction of two separate crimes results in two separate sentences when sentencing takes place together). The preclusion of a time gap can reasonably be read to bar only a gap between release from incarceration on all counts and probation. We hold that when there is one sentencing that includes incarceration and either community control or probation on a variety of counts or cases, a probationary split sentence does not create gap time so long as community control or probation immediately follows incarceration.
In this case, the trial court adjudicated three cases in one hearing and imposed a single split sentence. We therefore find that the trial court did not create a time gap in violation of
It is so ordered.
OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.