EDWARD L. TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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COBB, Judge.
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.
PETERSON, J., concurs.
W. SHARP, J., concurs in result only, with opinion.
W. SHARP, Judge,
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.1 Since we are apparently bound by Poore v. State, 531 So. 2d 161 (Fla.1988), I concur in this ease with reluctance.
. 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)."
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Citator
Cited By
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Holloway v. State, 668 So. 2d 627 (Fla. 5th DCA 1996)…DCA 1993), this court held that a term of fifteen years incarceration followed by a term of life probation exceeded the statutory maximum of forty years for a life felony. See also White v. State, 652 So. 2d 518 (Fla. 5th DCA 1995); Turner v. State, 623 So. 2d 1220 (Fla. 5th DCA 1993). The defendant’s reliance is misplaced however, because these cases are factually distinguishable. In this regard, the eases cited above involved “life felonies” punishable under section 775.082(3)(a) of the Florida Statutes, whe…
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Sumner v. State, 658 So. 2d 111 (Fla. 2d DCA 1995)…wo years in prison followed by twenty-five years’ probation. The appellant claims that this sentence is improper under section 775.082(3)(a), Florida Statutes (1993). We agree. See Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993); Turner v. State, 623 So. 2d 1220 (Fla. 5th DCA 1993). Accordingly, we reverse the appellant’s sentence and remand for resentencing. We point out to the trial court that it may achieve the same punishment goal by sentencing the appellant to life incarceration, suspended after serv…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991)
- Taylor v. State, 573 So. 2d 173 (Fla. 5th DCA 1991)
- NME Hosps., Inc. v. Azzariti, 573 So. 2d 173 (Fla. 2d DCA 1991)