From Casetext: Smarter Legal Research

Hernandez v. State

District Court of Appeal of Florida, Third District
Sep 1, 1999
740 So. 2d 1245 (Fla. Dist. Ct. App. 1999)

Opinion

No. 99-1852.

Opinion filed September 1, 1999.

An appeal under Fla.R.App.P. 9.140 (i) from the Circuit Court for Dade County, Robert N. Scola, Jr., Judge, L.T. No. 91-34449

Maximiliano Hernandez, in proper person.

Robert A. Butterworth, Attorney General, for appellee.

Before SCHWARTZ, C.J., and COPE and LEVY, JJ.


Maximiliano Hernandez appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.800.

After conviction in circuit court case number 91-34449, on March 18, 1992, defendant-appellant was sentenced to a term of 12 years in state prison followed by three years probation. After violating his probation a second time, on June 21, 1994, the trial court sentenced defendant to 20 years in state prison followed by 10 years probation.

After filing three motions for postconviction relief, on May 17, 1999, defendant filed his fourth motion for postconviction relief claiming that the June 1994 sentence is illegal because it exceeds the probationary portion of defendant's original sentence. The motion was denied and this appeal followed. We affirm.

First, this (fourth) request for postconviction relief is barred. See Zeigler v. State, 632 So.2d 48, 51 (Fla. 1993) ("`A successive motion [for post-conviction relief] may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an abuse of process.'") (citation omitted). Second, the June 1994 sentence is not an impermissible sentence and the trial court was permitted to impose a sentence greater than 3 years. The original sentence was a "probationary split sentence" (not a "true split sentence") consisting of a period of confinement followed by a period of probation. See Poore v. State, 531 So.2d 161, 164 (Fla. 1988). Under these circumstances, upon violation of defendant's probation, the trial court was permitted to impose any sentence it might have imposed at the time of the initial sentence, with credit for time served and subject to the guidelines recommendation. Id. Assuming, without deciding, that a claim of this type can be raised by a Rule 3.800 (a) motion, the claim is without merit.

Affirmed.


Summaries of

Hernandez v. State

District Court of Appeal of Florida, Third District
Sep 1, 1999
740 So. 2d 1245 (Fla. Dist. Ct. App. 1999)
Case details for

Hernandez v. State

Case Details

Full title:MAXIMILIANO HERNANDEZ, Appellant, v. THE STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Sep 1, 1999

Citations

740 So. 2d 1245 (Fla. Dist. Ct. App. 1999)

Citing Cases

Ward v. State

To the same effect is our own decision in Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002), with which…

Diaz v. State

Upon the revocation of the community control portion of the sentence, the trial court could have imposed any…