State v. Holmes, 360 So. 2d 380 (Fla. 1978). · Go Syfert
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State v. Holmes, 360 So. 2d 380 (Fla. 1978). Cases Citing This Book View Copy Cite
127 citation events (11 in the last 25 years) across 6 distinct courts.
Strongest positive: RUSSELL RIOUX v. STATE OF FLORIDA (fladistctapp, 2019-06-28)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 44 distinct citers. How cited ↗
discussed Cited as authority (rule) RUSSELL RIOUX v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
And "[t]he law is clear that when a defendant is sentenced to a split sentence consisting of incarceration and probation, as provided by statute, the combined sanction cannot exceed the maximum period of incarceration provided by law." Smith v. State, 584 So. 2d 154, 154 (Fla. 2d DCA 1991) (citing State v. Holmes, 360 So. 2d 380, 383 (Fla. 1978)).
discussed Cited as authority (rule) Scharman v. Crews
Fla. Dist. Ct. App. · 2013 · confidence medium
See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. A defendant is entitled to such credit even when it results in a “windfall” requiring immediate release.
cited Cited as authority (rule) Mann v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. (2007).
cited Cited as authority (rule) Dortly v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. (2007).
cited Cited as authority (rule) Fettler v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
Pendergrass v. State, 487 So.2d 35, 36 (Fla. 4th DCA 1986) (citing State v. Holmes, 360 So.2d 380, 383 (Fla.1978)).
cited Cited as authority (rule) Gremmels v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
See § 775.082, Fla. Stat. (2001); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Baker v. State, 652 So.2d 431 (Fla. 2d DCA 1995).
cited Cited as authority (rule) Spring v. State
Fla. Dist. Ct. App. · 2001 · confidence medium
State v. Holmes, 360 So.2d 380, 383 (Fla.1978).
cited Cited as authority (rule) Cedric Carter v. State of Mississippi
Miss. · 1998 · confidence medium
State v. Holmes, 360 So. 2d 380, 382 (Fla. 1978).
cited Cited as authority (rule) Cedric Carter v. State of Mississippi
Miss. · 1998 · confidence medium
State v. Holmes, 360 So. 2d 380, 382 (Fla. 1978).
cited Cited as authority (rule) Pryor v. State
Fla. Dist. Ct. App. · 1998 · confidence medium
See Young v. State, 697 So.2d 75 (Fla.1997); State v. Holmes, 360 So.2d 380, 383 (Fla. 1978).
discussed Cited as authority (rule) Eubanks v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
E.g., Fla.R.Crim.P. 3.701(d)(10); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Kline v. State, 642 So.2d 1146 (Fla. 1st DCA 1994); Milbry v. State, 469 So.2d 137 (Fla. 3d DCA 1984), opinion adopted, 476 So.2d 1281, 1282 (Fla.1985); see also Fla.R.Crim.P. 3.701(d)(12) Commission Notes (1988) (“The total sanction (incarceration and probation) shall not exceed the term provided by general law.”)- The trial court is further directed to clarify whether this sentence is to run concurrent with or consecutive to time being served by appellant at the time of his original sentencing.
discussed Cited as authority (rule) Gonzales v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
Under State v. Holmes, 360 So.2d 380, 383 (Fla. 1978), the total term of a split sentence imposed upon conviction cannot exceed the maximum provided by statute, and upon revocation of probation, the sentencing options are restricted to any sentence that could have been imposed on the original charge.
discussed Cited as authority (rule) Summers v. State
Fla. Dist. Ct. App. · 1993 · confidence medium
For support, Smith cited the supreme court's opinion in State v. Holmes, 360 So.2d 380, 383 (Fla. 1978), which stated that if probation is revoked, "no credit shall be given for time spent on probation." After reconsidering Holmes and in light of Snead v. State, 616 So.2d 964 (Fla. 1993), as we will discuss infra, we conclude that we must partially recede from Smith .
discussed Cited as authority (rule) Priest v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Pendergrass v. State, 487 So.2d 35, 36 (Fla. 4th DCA 1986) (citing State v. Holmes, 360 So.2d 380, 383 (Fla.1978)) (when probation is revoked after a defendant has been sentenced to period of incarceration followed by period of probation, no credit is given for time spent on probation).
discussed Cited as authority (rule) Williams v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
The law is well settled that where, as here, a defendant is sentenced to prison for a violation of probation, the defendant must be given credit for time he served in the county jail prior to being originally placed on probation, State v. Green, 547 So.2d 925, 926 (Fla.1989); State v. Holmes, 360 So.2d 380, 383 (Fla.1978), as well as the time he served in the county jail awaiting his violation of probation hearing.
cited Cited as authority (rule) Smith v. State
Fla. Dist. Ct. App. · 1991 · confidence medium
State v. Holmes, 360 So.2d 380, 383 (Fla. 1978).
cited Cited as authority (rule) Glass v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
State v. Holmes, 360 So.2d 380, 383 (Fla. 1978).
discussed Cited as authority (rule) Smith v. State
Fla. · 1986 · confidence medium
In State v. Holmes, 360 So.2d 380, 383 (Fla. 1978), we held: (1) that a trial judge is authorized by Section 948.01(4) [now 948.01(8)] to sentence a defendant to a period of incarceration followed by a period of incarceration followed by a period of probation; (2) that the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged... .
cited Cited "see" Darling v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Ward v. State, 558 So.2d 166 (Fla. 1st DCA 1990).
cited Cited "see" Steiner v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978); Spring v. State, 795 So.2d 266 (Fla. 1st DCA 2001).
cited Cited "see" McCray v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978) (combined periods of incarceration and probation cannot exceed the maximum period of incarceration provided by statute for the offense charged).
cited Cited "see" Palumbo v. State
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978).
discussed Cited "see" Young v. State (2×) also: Cited "see, e.g."
Fla. · 1997 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978).
cited Cited "see" Madrigal v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380, 383 (Fla. 1978), holding limited on other grounds by State v. Summers, 642 So.2d 742 (Fla.1994).
discussed Cited "see" Card v. State (2×)
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380, 383 (Fla.1978).
cited Cited "see" Young v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380, 383 (Fla.1978), holding limited by, State v. Summers, 642 So.2d 742 (Fla.1994).
cited Cited "see" Francois v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380, 383 (Fla. 1978); see also State v. Summers, 642 So.2d at 743 .
cited Cited "see" Holloway v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978).
cited Cited "see" Gardner v. State
Fla. Dist. Ct. App. · 1995 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla. 1978); State v. Green, 547 So.2d 925 (Fla. 1989).
discussed Cited "see" State v. Summers
Fla. · 1994 · signal: see · confidence high
See Holmes, 360 So.2d at 383 (combined terms of incarceration and probation may not exceed the statutory maximum); Schertz v. State, 387 So.2d 477 (Fla. 4th DCA 1980) (statutory maximum must be observed when modifying or extending probation); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976) (original term of probation may not exceed statutory maximum).
cited Cited "see" Wilner v. Singletary
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978).
cited Cited "see" Wiley v. State
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla. 1978); Weiner v. State, 562 So.2d 392 (Fla. 5th DCA 1990); Blackburn v. State, 468 So.2d 517 (Fla. 1st DCA 1985).
cited Cited "see" Cordoves v. State
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978); Gonzalez v. State, 546 So.2d 786 (Fla. 3d DCA 1989).
cited Cited "see" Sams v. State
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978).
cited Cited "see" State v. Green
Fla. · 1989 · signal: accord · confidence high
Accord State v. Holmes, 360 So.2d 380 (Fla. 1978).
cited Cited "see" Bell v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978), and Sims v. State, 369 So.2d 431 (Fla. 2d DCA 1979).
discussed Cited "see" Milbry v. State
Fla. Dist. Ct. App. · 1984 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Corraliza v. State, 391 So.2d 330 (Fla. 3d DCA 1980), pet. for review denied, 399 So.2d 1141 (Fla.1981); Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976).
cited Cited "see" Brice v. State
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See State v. Jones, 327 So.2d 18 (Fla.1976), and State v. Holmes, 360 So.2d 380 (Fla.1978).
cited Cited "see" State v. Payne
Fla. · 1981 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla. 1978); State v. Jones, 327 So.2d 18 (Fla. 1976); rev'd in part on other grounds, 330 So.2d 189 (Fla. 1978).
cited Cited "see" Rose v. State
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See State v. Holmes, 360 So.2d 380 (Fla.1978); Waits v. State, 328 So.2d 223 (Fla. 2d DCA 1976).
cited Cited "see, e.g." Wiggins v. State
Fla. Dist. Ct. App. · 1998 · signal: see also · confidence low
See also State v. Holmes, 360 So.2d 380 (Fla.1978).
cited Cited "see, e.g." Hill v. State
Fla. Dist. Ct. App. · 1995 · signal: see, e.g. · confidence low
See, e.g., State v. Holmes, 360 So.2d 380 (Fla.1978); Gilyard v. State, 636 So.2d 134 (Fla.2d DCA 1994), approved, 653 So.2d 1024 (Fla.1995).
cited Cited "see, e.g." Dirk v. State
Fla. Dist. Ct. App. · 1985 · signal: see, e.g. · confidence low
See, e.g., State v. Holmes, 360 So.2d 380 (Fla.1978); McGraw v. State, 404 So.2d 817 (Fla. 1st DCA 1981); Bagley v. State, 397 So.2d 1036 (Fla. 5th DCA 1981).
cited Cited "see, e.g." Williams v. State
Fla. Dist. Ct. App. · 1980 · signal: see also · confidence low
See also State v. Holmes, 360 So.2d 380 (Fla.1978).
Retrieving the full opinion text from the archive…
STATE of Florida, Petitioner,
v.
Ricky W. HOLMES et al., Respondents.
51608.
Supreme Court of Florida.
Jul 13, 1978.
360 So. 2d 380
Hatchett.
Cited by 106 opinions  |  Published

[*381] Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.

Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief Asst. Public Defender, and Marc R. Goldstein, Asst. Public Defender, West Palm Beach, for respondents.

HATCHETT, Justice.

We have for review a decision holding that the combined period of incarceration and probation imposed under Florida's split sentencing statute, Section 948.01(4), Florida Statutes (1975), must be within the maximum period of incarceration allowed by statute for the offense for which sentence is being imposed. Because this decision conflicts with State v. Jones,[1] 327 So.2d 18 (Fla. 1976), we have jurisdiction.[2] The decision of the district court is approved.

Respondents, Ricky W. Holmes, Edgar Allen Holmes, and Helen Ann Holmes, were convicted of breaking and entering with intent to commit a misdemeanor and were sentenced under Section 948.01(4), Florida Statutes (1975), to combined terms of imprisonment and probation in excess of the five year period of incarceration permitted by Section 775.082(3)(d), Florida Statutes (1975).[3] Ricky Holmes and Edgar Allen Holmes were each sentenced to three years incarceration, one and one half years of which were suspended, followed by four years probation. Helen Holmes was sentenced to five years incarceration with two years suspended, followed by four years probation. The Fourth District Court affirmed the judgments and convictions but modified the sentences, holding that the combined time spent incarcerated and on probation must not total more than the maximum period of incarceration allowed by statute for the offense.

[*382] Section 948.01(4) authorizes the imposition of a sentence popularly known as a "split sentence," that is, a sentence imposing a specified period of incarceration followed by a specified period of probation. That statute provides as follows:

Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.

The statute is silent as to how long the period of probation may be, separately, or in combination with the period of incarceration. The district court held that both periods combined must be within the maximum period of incarceration allowed by statute for the particular offense charged. That decision is in accord with the decisions of the other district courts on this issue. See Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2nd DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2nd DCA 1976); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977); McNulty v. State, 339 So.2d 1155 (Fla. 1st DCA 1976), and Troiano v. State, 347 So.2d 657 (Fla. 4th DCA 1977).

In State v. Jones, supra, the case cited by petitioner for conflict, this court addressed a related issue: the permissible period of incarceration following revocation of probation imposed as a part of the original sentence. In that case this court held that upon revocation of probation, a trial judge may impose any sentence which he might have originally imposed minus the time spent in jail as part of the same sentence. The court stated:

We read this provision of the statute [Section 948.01(4), Florida Statutes (1973)] to mean that the time spent in jail must be within any maximum jail sentence which could be imposed. (emphasis added) at 25.

But, the court went on to hold:

... we hold (1) the trial court may place a defendant on probation and include, as a condition, incarceration for a specific period of time within the maximum sentence allowed; ... (emphasis added) at 25.

Petitioner argues that this language means that where a trial judge imposes a split sentence, he may impose the maximum period of incarceration plus a period of probation. Obviously, petitioner argues, the combined periods of probation and incarceration would, under these circumstances, exceed the maximum period of incarceration allowed by statute for the particular offense.

In Jones, the court was called upon to answer a certified question regarding the permissible length of incarceration following a revocation of probation imposed under Section 948.01(4). In answering this certified question, the court also answered the question raised by appellants herein; and it answered that question in a way that confused the law on the issue now presented. That portion of the decision which holds that a trial judge may sentence a defendant to a combined period of incarceration and probation in excess of the maximum period provided by statute for the offense charged is overruled.

In Watts, the court gave the reasoning for holding the combined periods within the statutory maximum in these words:

Until 1974, Fla. Stat. § 948.04 specified that a term of probation could not extend more than two years beyond the maximum permissible sentence. But, Ch. 74-112, effective July 1, 1974, eliminated this proviso. We think, therefore, a court is now powerless to extend a period of probation beyond the maximum permissible sentence except as provided in that statute.
The power to place a defendant on probation for a period of time not to[*383] exceed the maximum sentence which may be imposed can be inferred, but since July 1, 1974, there no longer exists any express statutory basis for allowing a longer period of probation. There is validity to not allowing probation to extend beyond the period of maximum sentences. First, a penal statute must be strictly construed in favor of those against whom it would operate; and second, to infer that a court could extend probation beyond such a maximum permitted punishment would lead to unacceptable results. At 223. (footnotes omitted)

We hold: (1) that a trial judge is authorized by Section 948.01(4) to sentence a defendant to a period of incarceration followed by a period of probation; (2) that the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged; (3) that if probation is subsequently revoked, a trial judge may impose any sentence which he might have originally imposed minus jail time previously served as a part of the sentence; and that (4) no credit shall be given for time spent on probation.

Accordingly, we approve the decision of the Fourth District Court of Appeal.

It is so ordered.

ADKINS, Acting C.J., and BOYD and SUNDBERG, JJ., concur.

ENGLAND, J., dissents.

1 Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977).
2 Art. V, § 3(b)(3), Fla. Const.
3 Sec. 775.082(3) and Sec. 775.082(3)(d), Fla. Stat. (1975), provide in pertinent part:

(3) a person who has been convicted of any other designated felony may be punished as follows:

(d) for a felony of the third degree, by a term of imprisonment not exceeding five years.