Schlosser v. State

District Court of Appeal of Florida

Schlosser v. State

554 So. 2d 1183, 14 Fla. L. Weekly 2718, 1989 Fla. App. LEXIS 6595, 1989 WL 141724

CourtDistrict Court of Appeal of Florida

DecidedNovember 22, 1989

DocketNo. 89-00129

StatusPublished

Cited by2 cases

This text of 554 So. 2d 1183 (Schlosser v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Schlosser v. State, 554 So. 2d 1183, 14 Fla. L. Weekly 2718, 1989 Fla. App. LEXIS 6595, 1989 WL 141724 (Fla. Ct. App. 1989).

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Opinion

LEHAN, Acting Chief Judge.

We reverse the sentence imposed against defendant. The sentence was two five year terms of probation, one to be consecutive to the other and both to be “consecutive to any other case” and 364 days incarceration in the county jail as a condition of one of those terms of probation, the incarceration to be served “concurrent with the time being served now in the federal sentence.” As the trial court had been advised, no federal sentence had been imposed at the time the probation and the foregoing incarceration were imposed. Thus, the sentence was improperly indefinite. See Richardson v. State, 432 So.2d 750, 751 (Fla.2d DCA 1983). See also McCall v. State, 475 So.2d 1364 (Fla.2d DCA 1985).

We do not agree with the state’s argument that because incarceration as a condition of probation is not a sentence, the trial court was free to link the incarceration to an as yet not existent federal sentence. See Van Tassel v. Coffman, 486 So.2d 528 (Fla.1986) (under certain circumstances a probation order which includes incarceration may be treated as a sentence).

An alternative ground for reversal is that under these circumstances the non-incarcerative portion of the sentence did not necessarily immediately follow the in-carcerative portion. See Lanier v. State, 504 So.2d 501 (Fla. 1st DCA 1987).

Reversed and remanded for proceedings consistent herewith.

THREADGILL and PATTERSON, JJ., concur.

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LEHAN, Acting Chief Judge.

We reverse the sentence imposed against defendant. The sentence was two five year terms of probation, one to be consecutive to the other and both to be “consecutive to any other case” and 364 days incarceration in the county jail as a condition of one of those terms of probation, the incarceration to be served “concurrent with the time being served now in the federal sentence.” As the trial court had been advised, no federal sentence had been imposed at the time the probation and the foregoing incarceration were imposed. Thus, the sentence was improperly indefinite. See Richardson v. State, 432 So.2d 750, 751 (Fla.2d DCA 1983). See also McCall v. State, 475 So.2d 1364 (Fla.2d DCA 1985).

We do not agree with the state’s argument that because incarceration as a condition of probation is not a sentence, the trial court was free to link the incarceration to an as yet not existent federal sentence. See Van Tassel v. Coffman, 486 So.2d 528 (Fla.1986) (under certain circumstances a probation order which includes incarceration may be treated as a sentence).

An alternative ground for reversal is that under these circumstances the non-incarcerative portion of the sentence did not necessarily immediately follow the in-carcerative portion. See Lanier v. State, 504 So.2d 501 (Fla. 1st DCA 1987).

Reversed and remanded for proceedings consistent herewith.

THREADGILL and PATTERSON, JJ., concur.

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Bluebook (online)

554 So. 2d 1183, 14 Fla. L. Weekly 2718, 1989 Fla. App. LEXIS 6595, 1989 WL 141724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlosser-v-state-fladistctapp-1989.

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