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The client hired the Sammis Law Firm because he wanted an attorney to file and litigate a motion to terminate probation early in Polk County, Florida. In 2002 the man entered a "no contest" plea to two counts of third degree child abuse pursuant to Florida Statutes Section Section 827.03. The Polk County Circuit Court Judge sentenced the man to 5 months in county jail plus 10 years probation for the two child abuse charges which were to be run concurrent (run together at the same time).
After the client had served more than six years of the ten years of probation, the client's original motion for early termination was denied by the Court in Polk County, FL. The court reasoned that since the underlying charges related to child abuse, he was not inclined to terminate probation early. Ms. Sammis then filed an amended motion for early termination and a "Motion to Correct Illegal Sentence Pursuant to Florida Rule 3.800(a) Where the Error is Apparent on the Face of the Record."
The Florida Rule 3.800(a) motion showed that the client's plea to two third degree felonies for child abuse under Florida Statutes Section 827.03 were punishable by a maximum of five years in prison unless the Criminal Punishment Code (CPC) score sheet exceeded the statutory maximum. See Florida Statutes Section 921.0024(2), Fla. Stat. (2004). In this case, the lowest permissible prison sentence indicated on the CPC score sheet was 19.5 moths which was well below the statutory maximum. Therefore, the maximum sentence in this case for each count was 5 years in Florida State Prison.
The actual sentence imposed in the case was illegal for two reasons, and that illegality was apparent on the face of the record. First, the sentence was illegal because the maximum sentence for a third degree felony such as child abuse under Florida law would be five years probation on each count with credit for time served instead of 10 years probation. Second, the Polk County written order states that the jail sentence of 5 months was to be served prior to the term of probation beginning which extended the sentence on each third degree felony to 10 years and 5 months.
The negotiated sentence was for a "concurrent" sentence on each count. Any sentence in excess of 5 years was in error and illegal. The fact that the sentence was part of a negotiated plea does not affect the illegality of the sentence. See Acres v. State, 925 So.2d 435 (5th DCA 2006), review dismissed, 940 S0.2d 427, rehearing denied.
The client took the position that he wanted the probation terminated early as quickly as possible. When the case went before the court the second time, the prosecutor still objected to terminating the probation early, but conceded that the form of the sentence was incorrect. The court granted the motion to terminate probation early, specifically stating on the record that the reason for granting the motion was because of the error in the form of the sentence. Because the Court granted the motion to terminate the probation early, the sentencing error became a moot issue. The client was pleased with the result and relieved to walk out of the courtroom a free individuals who was no longer on probation.
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If you are currently serving a felony probationary sentence in Florida and are considering filing a motion to terminate your felony probation early, contact an experienced criminal defense attorney to discuss your case.
Read here for more information on hiring an attorney for child abuse charges in Bartow, Polk County, FL.