Saturday, February 21, 2009

What Is a "Reverse Split Sentence"?

Last week, while giving a group of judges a class on sentencing law, it came to my attention that few of the judges present had ever heard of "reverse split sentencing," which is one of the statutory sentencing options available to Florida judges. Upon further inquiry, I discovered that few prosecutors or defense attorneys had heard of it either. This is unfortunate, because this sentencing option can be very appropriate -- especially in a case where the defendant has little criminal history, restitution owed the victim or victims is substantial, and the court needs a real hammer to get the defendant to comply with the terms of supervision.

A “reverse split sentence” is one whereby the defendant is sentenced to a term of probation which may be followed by a period of incarceration or, with respect to a felony, into community control, as follows:

- If the defendant meets the terms and conditions of probation or community control, any term of incarceration may be modified by court order to eliminate the term of incarceration.[1] A defendant upon whom a reverse split sentence is imposed may petition the sentencing court at any time prior to the start of the incarcerative portion of the sentence with a request to eliminate or reduce that portion of the sentence, but the court is under no obligation to grant such a request.

- If the defendant does not meet the terms and conditions of probation or community control, the court may revoke, modify, or continue the probation or community control as provided in section 948.06. If the probation or community control is revoked, the court may impose any sentence that it could have imposed at the time the defendant was placed on probation or community control. The court may not provide credit for time served for any portion of a probation or community control term toward a subsequent term of probation or community control. However, the court may not impose a subsequent term of probation or community control which, when combined with any amount of time served on preceding terms of probation or community control for offenses pending before the court for sentencing, would exceed the maximum penalty allowable as provided in section 775.082. Such term of incarceration must be served under applicable law or county ordinance governing service of sentences in state or county jurisdiction. This does not prohibit the court from imposing any other sanction provided by law.[2]


The obvious expectation of the legislature in enacting provision for a reverse split sentence is that the court will eliminate the term of incarceration if the defendant complies with the terms of probation.[3]

A reverse split sentence cannot be used to thwart the applicable sentencing guidelines or Criminal Punishment Code (CPC). Where the presumptive minimum sentence calls for imprisonment, the possibility of no incarceration is enough to constitute a downward departure, which requires contemporaneous written reasons under the guidelines or CPC.[4] Note that a reverse split sentence is not imposed when the incarcerative portion of a sentence is suspended and the elimination of the incarcerative portion is conditioned upon successful completion of the supervisory portion of the sentence: Such a sentence would properly be termed a conditional suspended sentence.
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[1] Sec. 948.012(2)(a), F.S.

[2] Sec. 948.012(2)(b), F.S.

[3] State v. Powell, 703 So. 2d 444 (Fla. 1997).

[4] Disbrow v. State, 642 So. 2d 740 (Fla. 1994).

[5] See, Bell v. State, 651 So. 2d 237 (Fla. Dist. Ct. App. 5th Dist. 1995).

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