Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994). · Go Syfert
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Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994). Cases Citing This Book View Copy Cite
“if on remand the state is unwilling to accept concurrent prison terms, defendant should be allowed to withdraw his plea and be subject to trial, but with the opportunity to negotiate a new plea.”
11 citation events (4 in the last 25 years) across 1 distinct court.
Strongest positive: STATE OF FLORIDA v. EDWARD FIDDEMON (fladistctapp, 2020-05-27)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) STATE OF FLORIDA v. EDWARD FIDDEMON
Fla. Dist. Ct. App. · 2020 · quote attribution · 1 verbatim quote · confidence high
if on remand the state is unwilling to accept concurrent prison terms, defendant should be allowed to withdraw his plea and be subject to trial, but with the opportunity to negotiate a new plea.
cited Cited as authority (rule) Dennis v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Clemons v. State, 629 So.2d 1067, 1068 (Fla. 2d DCA 1994).
cited Cited as authority (rule) Smith v. Kearney
Fla. Dist. Ct. App. · 2001 · confidence medium
See Lee v. State, 717 So.2d 1088, 1089 (Fla. 4th DCA 1998); Benjamin v. State, 705 So.2d 126, 126 (Fla. 2d DCA 1998); Clemons v. State, 629 So.2d 1067, 1068 (Fla. 2d DCA 1994).
discussed Cited as authority (rule) Gardner v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
Under the first point, appellant contends that his sentences are illegal, because the court imposed concurrent terms of probation and incarceration, and he cites Clemons v. State, 629 So.2d 1067, 1068 (Fla. 2d DCA), review denied, 639 So.2d 976 (Fla. 1994), which holds that it is reversible error to impose probation and incarceration concurrently.
cited Cited "see" Lee v. State
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Clemons v. State, 629 So.2d 1067, 1068 (Fla. 2d DCA 1994).
cited Cited "see" Benjamin v. State
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Clemons v. State, 629 So.2d 1067 (Fla. 2d DCA 1994).
cited Cited "see, e.g." Peters v. State
Fla. Dist. Ct. App. · 1995 · signal: see also · confidence low
See also Clemons v. State, 629 So.2d 1067 (Fla. 2d DCA), rev. denied, 639 So.2d 976 (Fla.1994).
Retrieving the full opinion text from the archive…
Lorenzo Leroy CLEMONS, Appellant,
v.
STATE of Florida, Appellee.
93-00796.
District Court of Appeal of Florida, Second District.
Jan 5, 1994.
629 So. 2d 1067
1994 WL 3451
Per Curiam.
Cited by 9 opinions  |  Published

James Marion Moorman, Public Defender, and Karen K. Purdy, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Defendant challenges the propriety of a sentence imposed after a nolo plea in two cases. We reverse and remand for resentencing.

In the first case, defendant was charged with aggravated assault with a firearm. In the second case, he was charged with burglary of a conveyance and grand theft auto. Under the terms of the plea agreement, the state was to abandon the burglary of a conveyance charge in the second case. In return, defendant was to plead nolo to the two remaining charges in the two cases, for which[*1068] he was to receive "any legal sentence, concurrent both counts" within the "recommended" range of the guidelines.

At sentencing, the trial court imposed three years incarceration, the mandatory minimum, for the aggravated assault with a firearm. The court then imposed five years probation for the grand theft, to run concurrent with the prison sentence. A condition of probation was to provide restitution to the victim, the amount to be determined at a hearing to be held at a later date. Defense counsel objected, arguing that incarceration and probation cannot be imposed to run concurrently.

On appeal, defendant argues that the concurrent imposition of incarceration and probation was illegal in this case. The primary authority he cites, Tripp v. State, 622 So.2d 941 (Fla. 1993) (revised opinion on denial of rehearing), offers little support to his position since he, after all, did not receive a Tripp sentence. Nonetheless, a long line of cases from this court directly on point holds that it is reversible error to impose probation and incarceration concurrently. E.g., Nobles v. State, 605 So.2d 996 (Fla. 2d DCA 1992); Barr v. State, 474 So.2d 417 (Fla. 2d DCA 1985); Roy v. State, 207 So.2d 52 (Fla. 2d DCA 1967), cert. dismissed, 211 So.2d 554 (Fla. 1968). The rationale in these cases stems from "the impossibility of complying with probation while in prison. Furthermore, the underlying concept of probation is rehabilitation, not punishment." Barr, 474 So.2d at 419. Under these cases, resentencing is necessary.

Defendant argues that on remand, he should receive a concurrent prison sentence for the grand theft. We note that one problem in this case is that the plea agreement, which was entered into by the state and accepted by the trial court, explicitly calls for "concurrent" dispositions for the two offenses. Since a mandatory minimum must be imposed for the aggravated assault with a firearm and since probation cannot be imposed simultaneously with incarceration, the trial court's sentencing options under the plea agreement are severely limited.

If on remand the state is unwilling to accept concurrent prison terms, defendant should be allowed to withdraw his plea and be subject to trial, but with the opportunity to negotiate a new plea. See Morris v. State, 620 So.2d 1081 (Fla. 2d DCA 1993). Defendant's point two on appeal is rendered moot by our disposition.

Reversed and remanded for resentencing.

RYDER, A.C.J., HALL, J., and REESE, THOMAS S., Associate Judge, concur.