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McLendon v. State

Florida Court of Appeals, First District

August 30, 2019

Steven Jarrod McLendon, Petitioner,
State of Florida, Respondent.

          Petition for Writ of Habeas Corpus-Original Jurisdiction.

         On Emergency Petition for Writ of Habeas Corpus

          Andy Thomas, Public Defender; and Lori A. Willner, Assistant Public Defender, Tallahassee, for Petitioner.

          Ashley Moody, Attorney General; and Barbara Debelius, Assistant Attorney General, Tallahassee, for Respondent.

          PER CURIAM.

         We grant Petitioner's Emergency Petition for Writ of Habeas Corpus, and direct his immediate release from incarceration for the charges addressed here. We write to explain the context of Petitioner's sentences, and to provide the procedural background of this case.

         I. Charges and Sentences.

         In 2007, Petitioner was charged with fifteen crimes including attempted lewd or lascivious conduct involving a victim between twelve and sixteen years old, attempted lewd or lascivious battery of a child less than sixteen years old, eleven counts of possession of child pornography, and possession of a misdemeanor amount of cannabis. One additional charge was nolle-prossed. The attempted lewd or lascivious conduct and battery, and the child porn charges, are third-degree felonies with maximum sentences of five years each. See §§ 800.04(6) (conduct), 800.04(4) (battery), 777.04(4)(d) (attempt is third-degree felony); 827.071(5) (child porn); 775.082(3)(e) (five-year maximum for third-degree felony), Fla. Stat. (2006). Petitioner pleaded nolo contendere. The trial court sentenced him to three years in prison for the attempted lewd or lascivious conduct, a consecutive five years on probation for the attempted lewd or lascivious battery, consecutive five years' probation for one of the child porn charges, and consecutive two years' probation for another child porn charge. The court ran all remaining sentences concurrent with one another and concurrent with the five-year probationary sentence for the attempted lewd or lascivious battery. Thus, although the trial court had the discretion to sentence Petitioner to multiple consecutive sentences, the court imposed a sentence of three years in prison followed by twelve years on sex-offender probation. Petitioner was required to participate in sex-offender counseling and to register as a sex offender under section 943.0435 of the Florida Statutes. He was prohibited from possessing any form of pornography or obscene or sexually-stimulating material, from having a computer, and from accessing the internet in any way.

         Petitioner served approximately thirty months in prison, from 2007 to 2010. Upon being released, he began serving his twelve years of probation, which would end in 2022. In 2010, only eight months after his release, he was charged with a violation of probation when his probation officer found sexually-explicit messages on Petitioner's cell phone. However, this charge was dismissed, and Petitioner continued to serve the probationary portion of his 2007 sentence.

         In late 2014, Petitioner had completed his sentences on counts 1 and 15 (attempted lewd or lascivious conduct and drug possession), and was serving his first five-year probationary period on the attempted lewd and lascivious battery and child porn charges. He was charged with another violation of probation when his probation officer searched his room in his grandmother's house and found an iPad hidden under fabric on his bed. Petitioner admitted the iPad was his. It was capable of accessing the internet, thus violating two terms of probation. In 2015, after proceedings on these violations, the trial court revoked Petitioner's probation and sentenced him on all charges collectively to a term of five years in prison plus two years' probation. His sex-offender requirements remained in place.

         This 2015 sentence is important in three respects. First, the trial court (a successor judge) did not re-impose independent or consecutive sentences on each of the remaining original charges, which could have resulted in a longer overall sentence that could have both honored the original sentences (although the successor judge was not required to do so), and forestalled the present situation. Second, by imposing this sentence on all remaining charges collectively, the trial court eliminated the possibility of using consecutive sentences to extend the overall sentence past five years. The result was a seven-year split sentence on crimes subject to a statutory maximum sentence of five years. Third, the 2015 sentence included a provision granting Petitioner credit for all time previously served "on this case," plus another 281 days of jail credit.

         The net effect of the 2015 sentence terms was that Petitioner's original 2007 sentence of fifteen years, expiring in 2022 (except for any ongoing sex-offender requirements), became a sentence of only fifteen months more than Petitioner had served from 2007 to 2010. He returned to prison in July of 2015 and was released on November 1, 2016. At that point, Petitioner had served the entirety of the legal portion of his sentence, and the trial court no longer had jurisdiction over him. See Aponte v. State, 896 So.2d 836, 838 (Fla. 1st DCA 2005) (reversing sentences resulting from revocation proceedings in third-degree felony cases because trial court lost jurisdiction once appellant had spent five years incarcerated or on probation). Nevertheless, because this issue was overlooked, Petitioner was placed on probation for two years as sentenced, to expire November 1, 2018. He did not appeal or file a collateral motion to assert that the sentence was illegal for exceeding five years. See Campbell v. State, 854 So.2d 257, 258 (Fla. 1st DCA 2003) (reversing for further proceedings on appellant's motion under Fla. R. Crim. P. 3.800(a) raising illegality of sentence over five years for a third-degree felony). Although these sentences were entered after a plea, "[e]ven with a defendant's consent, the court is without jurisdiction to impose a sentence beyond the statutory maximum." Gonzales v. State, 816 So.2d 720, 722 (Fla. 5th DCA 2002); cf. Carson v. State, 37 So.3d 884, 886 (Fla. 1st DCA 2010) (finding that the trial court could properly impose a special type of probation to which the defendant pleaded even if it could not impose it in the absence of a plea).

         In April of 2018, when it seemed Petitioner was still within his two-year probationary period from the 2015 sentence, he was charged with a violation of probation for the new law offense of battery on a person age 65 or older, apparently the 81-year-old grandmother who had raised him. He was drunk, got into an argument with her, and pushed her down, dislocating her shoulder and injuring her arm. He admitted the allegations. At the sentencing hearing for the violation of probation, the parties discussed that any sentencing for the new law violation itself would occur later. Petitioner's counsel incorrectly advised the trial court that the attempted lewd or lascivious battery charge was a second-degree felony with a maximum sentence of ten years, and that the parties had agreed to a ten-year sentence. Petitioner entered this negotiated no-contest plea pursuant to which he was sentenced to ten years in prison for the attempted lewd or lascivious battery charge, with five years' probation for the child porn charges. Petitioner then moved to withdraw his plea on grounds that he ...

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