No. 88-3270 | Fla. Dist. Ct. App. | Aug 15, 1990
We affirm the judgment and sentence except as to costs. The defendant received a sentence of five years incarceration on one count and ten years on another. However, after serving the first thirty months incarceration, he was to be on concurrent probation for a balance of 2⅛⅛ and 5 years respectively. This constitutes a “true” split sentence. Poore v. State, 531 So. 2d 161" court="Fla." date_filed="1988-09-22" href="https://app.midpage.ai/document/poore-v-state-1150029?utm_source=webapp" opinion_id="1150029">531 So.2d 161 (Fla.1988). In the event defendant should violate, he cannot be resen-tenced to a term, including time served, in excess of the original sentence imposed. Franklin v. State, 545 So. 2d 851" court="Fla." date_filed="1989-06-15" href="https://app.midpage.ai/document/franklin-v-state-1749597?utm_source=webapp" opinion_id="1749597">545 So.2d 851 (Fla.1989). The sentencing guideline range for these offenses is 12 to 30 months.
The appellant asserts that the sentence is a deviation from the guidelines because the “suspended” probationary period in a “true” split sentence should be computed along with the initial period of incarceration as a total period of assessed confinement. However, even in a true split sentence, only the initial period designated for incarceration is computed in determining whether the sentence exceeds the guidelines. See Morris v. State, 532 So. 2d 1116" court="Fla. Dist. Ct. App." date_filed="1988-10-20" href="https://app.midpage.ai/document/morris-v-state-7569517?utm_source=webapp" opinion_id="7569517">532 So.2d 1116 (Fla. 5th DCA 1988); Fla.R.Crim.P. 3.701(d)(11, 12). See also Tyner v. State, 545 So. 2d 961" court="Fla. Dist. Ct. App." date_filed="1989-06-30" href="https://app.midpage.ai/document/tyner-v-state-1750440?utm_source=webapp" opinion_id="1750440">545 So.2d 961 (Fla. 2d DCA 1989); Williams v. State, 538 So. 2d 541" court="Fla. Dist. Ct. App." date_filed="1989-02-17" href="https://app.midpage.ai/document/williams-v-state-7572011?utm_source=webapp" opinion_id="7572011">538 So.2d 541 (Fla. 1st DCA 1989).
Neither Poore nor Franklin support a conclusion that the length of the term of incarceration and of probation should be treated differently in a “true” split sentence than in a “probationary” split sentence. To hold otherwise would discourage trial courts from imposing a
We also find no error in the order imposing restitution as a condition of probation. However, we reverse the sentence as to the invalid assessment of costs without notice, waiver or hearing. Mays v. State, 519 So. 2d 618" court="Fla." date_filed="1988-02-04" href="https://app.midpage.ai/document/mays-v-state-1736075?utm_source=webapp" opinion_id="1736075">519 So.2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947" court="Fla." date_filed="1984-01-19" href="https://app.midpage.ai/document/jenkins-v-state-1094206?utm_source=webapp" opinion_id="1094206">444 So.2d 947 (Fla.1984). On remand, the court may either strike the costs or hold a hearing.