623 So. 2d 1220 | Fla. Dist. Ct. App. | 1993
Lead Opinion
The appellant, Edward Turner pled guilty to capital sexual battery, a “life felony.” He was sentenced, pursuant to agreement, to 40 years incarceration followed by life probation. This sentence, as conceded by the state, exceeds the statutory maximum. Taylor v. State, 573 So.2d 173 (Fla. 5th DCA 1991).
The error here was the imposition by the trial court of a probationary split sentence instead of a true split sentence. See Poore v. State, 531 So.2d 161 (Fla.1988). The latter is lawful but the former is not, where, as here, the incareerative portion of the split sentence is 40 years for a life felony. The trial court may, upon remand, impose a sentence of life incarceration, suspended after serving 40 years of incarceration, with the balance of the sentence thereafter to be served on probation. This is the sentence that was bargained for. See generally, Wood v. State, 582 So.2d 751 (Fla. 5th DCA 1991) (resentence consistent with original sentencing plan is not vindictive).
The sentence is reversed and the ease is remanded for resentencing.
Concurrence Opinion
concurring in result.
There is something illogical about saying a sentence of forty years followed by life probation is illegal because it exceeds the statutory maximum (forty years or a life sentence), but a sentence to prison for life suspended after forty years followed by life probation, is lawful. In substance and reality, the two are identical, and will have an identical impact on Turner. One is hard pressed to explain the difference to him with a straight face.
. To quote Charles Dickens (Mr. Bumble commenting on the law): If that be the law, "the law is an ass — an idiot....” (Oliver Twist, Chapter 51)."
