ROGER M. JACKSON, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Brevard County, Jeffrey
M. Jackson, Orlando, pro se.
Moody, Attorney General, Tallahassee, and Lori N. Hagan,
Assistant Attorney General, Daytona Beach, for Appellee.
Jackson appeals the denial of his Florida Rule of Criminal
Procedure 3.800(a) motion to correct illegal sentence. He
argues that his 22-year concurrent sentences for four
second-degree felonies are illegal. We agree and reverse.
was found guilty of committing two counts of lewd and
lascivious acts in the presence of a minor and two counts of
lewd and lascivious or indecent acts upon a minor child, in
violation of section 800.04(1), and (4), Florida Statutes
(1998), all second-degree felonies. On May 7, 2001, Jackson
was sentenced on all counts to serve a concurrent 144 months
(12 years) in the Department of Corrections, followed by 10
years of probation. Each individual sentence amounted to a
composite sentence of 22 years.To date, Jackson has served a
combination of incarceration and probation of over 18 years.
a defendant is sentenced to a term in prison followed by
probation, the combined times must not exceed the statutory
maximum." Gonzales v. State, 816 So.2d 720, 721
(Fla. 5th DCA 2002) (citing State v. Holmes, 360 So.2d 380
(Fla. 1978); Orosco v. State, 710 So.2d 1386 (Fla. 4th DCA
1998); Soria v. State, 584 So.2d 1130 (Fla. 5th DCA 1991)).
The statutory maximum sentence for a second-degree felony is
fifteen years. See § 775.082(3)(c), Fla. Stat.
(1998). Thus, Jackson's original 22-year sentence was
State does not dispute that Jackson's original sentences
were illegal. It nonetheless argues Jackson should be
estopped from challenging his original sentences because he
waited until after he violated his probation to file his
motion. See Stroble v. State, 689 So.2d 1089, 1090
(Fla. 5th DCA 1997) ("[O]ne who takes advantage of an
invalid sentence until he violates community control is
estopped to assert the invalidity of his original
sentence."); Huff v. State, 672 So.2d 634, 635
(Fla. 1st DCA 1996) (finding improper sentence is not
reversible on appeal after violation of probation);
Dupree v. State, 708 So.2d 968 (Fla. 1st DCA 1998)
(determining defendant was estopped from challenging illegal
sentence where he waited until after violating community
control to challenge sentence). But see Gonzales,
816 So.2d at 722 (ruling defendant not estopped from
challenging initial illegal sentence where "the full 15
year prison term allotted for a second degree felony"
was served before challenging sentence upon violation of the
illegally imposed probation); White v. State, 828
So.2d 491 (Fla. 1st DCA 2002) (finding defendant not estopped
from challenging original illegal sentence after serving an
incarcerative or probationary term in excess of the statutory
maximum when VOP sentence challenged).
Jackson was sentenced to serve 12 years, and not the full 15
years the court could have imposed, prior to probation
commencing. After his release from prison, Jackson began
serving the probationary portion of his sentence, which he
violated one month before a legal fifteen-year sentence would
have terminated. Instead of sentencing Jackson to prison on
the violation, or even a new term of probation, the trial
court simply modified Jackson's original probation to
include community control. Thus, Jackson continues to serve
the same composite sentences originally imposed in excess of
the fifteen-year statutory maximum.
Jackson was not sentenced to a new term of incarceration or
probation upon his violation of probation and because his
rule 3.800(a) motion challenging the legality of his
sentences was filed after the statutory maximum number of
years had passed for his second-degree offenses, Jackson is
not estopped from challenging the legality of his original
sentence. See Gonzalez, 816 So.2d at 722. His
sentences were originally illegal and continue to be illegal.
See id. at 721; Soria, 584 So.2d at 1131.
Accordingly, we reverse the order denying Jackson's
motion to correct illegal sentence and remand with directions
that the trial court terminate his probation.
EISNAUGLE and ...