Petrillo v. StatePetrillo v. State
Appellant, defеndant below, Henry Joseph Petrillo, challenges his sentence on appeal. We find that the thirty-yeаr probationary term was not a departure from the guidelines and that the restitution award should be reduced to $1,963.43, as originally ordered.
Appellant pled guilty to one count of racketeering, four cоunts of false and fraudulent insurance claim and four counts of grand theft, second degree. On May 8, 1987, the trial сourt sentenced appellant to probation and a short prison term. It also
We find that the thirty-year probationary term, ordered to be served consecutive to the four-and-one-half-year prison term, did not violate Florida Rule of Criminal Procedure 3.701. Committee note (d)(12) to Florida Rule of Criminal Procedure 3.701 states, in pertinent part, as follows:
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range nor exceed the maximum of thе range. The total sanction (incarceration and probation) shall not exceed the term рrovided by general law.
The guideline range required four-and-one-half to five-and-one-half years incarceration. The court sentenced appellant to four-and-one-half years on one of the false and fraudulent insurance claims. Under Nichols v. State, 528 So.2d 1282 (Fla. 1st DCA 1988), the four-and-one-half-year prison term followed by the thirty-yеar probationary term was not a true split sentence since the four-and-one-half-year sentence was for one offense, false and fraudulent insurance claim, and the thirty-year probationary term was for another offense, racketeering.
The length of prison sentences recommended under thе guidelines has nothing to do with, and does not control, the length of a probation sentence chosen as an alternative to prison. State v. Malone, 489 So.2d 213 (Fla.3d DCA 1986). While we recognize that Rule 3.701(d)(12) does not apрly directly here because this is not a “true” split sentence, logic would dictate that if the court may, on a split sentence, impose an incarcerative sentence within the guideline range plus a рrobationary term which together do not exceed the term provided by law, it may also do so when sеntencing for separate offenses at the same time. Rule 3.701(d)(12) mandates that a sentence must be imposed for each offense and further provides that the total sentence (probably should be read sentences) cannot exceed the total guideline sentence unless a written reason is given. Since аppellant‘s sentence of four-and-one-half years did not exceed the guideline recommеnded sentence for one offense and the thirty years probation was within the maximum penalty provided by law for another offense for which appellant was being sentenced (
We do find, however, that the court erred when it increased the restitution amount from $1,963.43 to $8,146.00. The first sentencing order showed a restitution amount, based on a plea bargain, of $1,963.43, and no evidence or testimony was presented to offеr support to add over $6,000.00 to that amount. We vacate the $8,146.00 amount and direct that the sentencing order be corrected to reflect the original restitution amount of $1,963.43.
Finally, although appellant argues that the court erred when it imposed probation and refused to give appellant straight time, “[t]he trial court, not the defendant,
In conclusion, we affirm appellant‘s sentence, vacate the $8,146.00 restitution amount and direct that the sentencing order be corrected to reflect the original restitution amount of $1,963.43.
RYDER and PATTERSON, JJ., concur.