Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WILLIAM P. PETERS, ) ) Appellant, ) ) v. ) Case No. 2D19-3550 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed January 29, 2021. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Philip J. Federico, Judge. William P. Peters, pro se. Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee. LaROSE, Judge. William P. Peters appeals the order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm. In 1994, Mr. Peters entered pleas to three crimes he committed in 1993. The trial court sentenced Mr. Peters as an habitual felony offender to concurrent terms of thirty years' imprisonment. The last ten years of each term was suspended upon Mr. Peters' successful completion of ten years' probation.1 Due to earned gain time, the Department of Corrections (DOC) released Mr. Peters to conditional release in 2007. See § 947.1405(2)(a), Fla. Stat. (2007). Mr. Peters' terms of probation commenced upon release and ran simultaneously with his conditional release. § 948.012(1), Fla. Stat. (2007) ("The period of probation or community control shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances."). Mr. Peters violated his probation. In 2012, the trial court sentenced him to concurrent terms of eight years' imprisonment. Mr. Peters filed his rule 3.800(a) motion some years later. He asserted that his eight-year sentences are illegal because the trial court did not designate whether those sentences would be served concurrently with or consecutively to any incarceration that would result if the DOC chose to forfeit the previously earned gain time that had permitted his conditional release. See § 944.28(1), Fla. Stat. (2007) ("[I]f the . . . conditional release as described in chapter 947 [or] probation or community control as described in chapter 948 . . . is revoked, the [DOC] may, without notice or hearing, declare a forfeiture of all gain-time earned according to the provisions of law by such prisoner prior to . . . his or her release under [these programs]."). Mr. Peters alleged that the DOC forfeited his earned gain time; as a result, the DOC decided that he will serve his eight-year sentences consecutively to his forfeited gain time. 1The supreme court has termed this type of a split sentence as a "true split sentence." Poore v. State, 531 So. 2d 161, 164 (Fla. 1988). "When a defendant violates a true split sentence, the most severe sentence the trial court may impose on resentencing is . . . the previously suspended term of years in prison." Eldridge v. Moore, 760 So. 2d 888, 889 n.1 (Fla. 2000). -2- Mr. Peters compared his circumstances to those in White v. State, 19 So. 3d 407 (Fla. 1st DCA 2009), and Richardson v. State, 947 So. 2d 1219 (Fla. 1st DCA 2007). In White, the appellant was arrested on a drug charge while on parole. 19 So. 3d at 407. The trial court sentenced him to twenty-four months' imprisonment to run concurrently with incarceration to be served upon revocation of his parole "at the discretion of the parole board." Id. In a rule 3.800(a) motion, the appellant asserted that his sentence was illegal because the trial court improperly delegated its sentencing discretion to the DOC. Id. The First District agreed: "Even if part of a negotiated plea agreement, a trial court cannot defer the structure of a sentence to the [DOC] because the executive branch agencies lack sentencing authority." Id. White cited to Richardson, 947 So. 2d at 1219, where the First District reached a similar result. The First District explained that a trial court "must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrent or consecutive to his or her community release sentence and cannot defer the structure of the sentence to the [DOC]." Id. at 1220 (citing § 921.16(1), Fla. Stat. (2004)). The First District determined that because the trial court delegated its sentencing authority to an administrative agency, the appellant's sentence was "of such a nature that it imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances." Id. at 1221 (citing Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) (defining an illegal sentence for purposes of rule 3.800(a))). The cases cited by Mr. Peters involved sentences for new law violations that occurred while the appellants were on community release. Mr. Peters challenges -3- his sentences for the three crimes he pleaded to in 1994. The trial court imposed split sentences, which have components that are, by nature, successive: an incarcerative portion and a probationary portion. That the DOC awarded, and then revoked, community release as an incentive for positive behavior during the incarcerative portion does not alter the structure of the 1994 sentences, and it did not confer upon the 2012 sentencing court the discretion to alter that structure. Affirmed. NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. -4-