
    Joseph John FLYNN, Appellant, v. STATE of Florida, Appellee.
    No. AE-15.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    
      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from an order which vacated a prior illegal sentence and imposed a new sentence. We affirm.

The appellant had originally received a split sentence for grand larceny as authorized by Section 948.01(4), Florida Statutes (1979). Under that sentence, he was to serve five years in prison, with the condition that after having served two years, the remainder of the sentence would be suspended and the appellant would be placed on probation for three years. After this sentence was imposed, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1981), was decided. In Villery, the supreme court held that

incarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation. We further hold that this decision applies retroactively. Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor mav the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation, (e. s.)

396 So.2d at 1112.

Pursuant to Villery, appellant applied to the trial court for a correction of his split sentence. The trial court withdrew the original sentence and resentenced the appellant to five years in prison (with credit for time previously served).

Appellant first contends that the above underscored words from Villery precluded the lower court from imposing a sentence in excess of the probationary term of three years. We disagree. This court has earlier construed Viller/s prohibition against trial courts imposing “sentence[s] of imprisonment for a period of time in excess of the original total term of probation ... ”, 396 So.2d at 1112, as meaning “the entire term previously imposed, including the conditional period of incarceration.” Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981). Therefore, consistent with Williams' interpretation of Villery, we agree with the lower court that the maximum sentence it was authorized to impose was five years, with credit for time previously served.

The appellant also contends that in imposing the new sentence, the trial court was limited by the holding in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to the effect that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 726, 89 S.Ct. at 2081. The primary consideration offered by the Court in fashioning this rule was that

it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where . . . the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, “penalizing those who choose to exercise” constitutional rights, “would be patently unconstitutional.”

Id. at 723-24, 89 S.Ct. at 2079-80, quoting United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968). To the extent that Pearce supports the proposition that one should not be penalized for exercising one’s legal rights, Pearce is applicable to the instant case. A prisoner should not be penalized for exercising his legal right to have an illegal sentence vacated. But at the same time, a trial court is not constitutionally precluded from imposing a new sentence which is greater than the original one, in view of events subsequent to the imposition of the original sentence “that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” Pearce, 395 U.S. at 723, 89 S.Ct. at 2079, quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949).

Assuming, without deciding, that the new sentence herein is more severe — although the new sentence of imprisonment does not exceed the entire term previously imposed — it is nevertheless constitutionally valid. The record in this case reflects that after the appellant’s release from prison and prior to his resentencing, four different violation of probation affidavits had been filed, each charging him with violating from three to five conditions of his probation. In its order on the appellant’s motion to correct his sentence, the trial court found that a violation of probation charge was pending against the appellant, and that the appellant had been charged with and had admitted earlier violations of his probation. It also determined that it was not necessary for it to entertain further violations of probation proceedings, and thereupon sentenced appellant to five years less the time previously served. In so doing, the trial court took into consideration the factors set forth in Pearce; therefore the imposition of the new sentence did not deprive the appellant of any due process or equal protection rights.

AFFIRMED.

ERVIN and SHAW, JJ., concur.

THOMPSON, J., specially concurring.

THOMPSON, Judge, specially

concurring.

I concur with the majority opinion as it relates to the appellant’s constitutional argument on resentencing. I agree with the conclusion reached by the majority on the maximum sentence that may be imposed but disagree with their interpretation of Villery. In my judgment, the supreme court in Villery did clearly distinguish between true split sentences imposed pursuant to § 948.01(4), Fla.Stat. and incarceration as a condition of probation imposed by order pursuant to § 948.01(3), Fla.Stat., when it said that:

Two basic alternatives are available to the trial judge at the time of sentencing. He may either sentence the defendant or he may place him on probation.
We agree with the District Court of Appeal, Third District, in McGowan v. State, supra, that incarceration as a condition of probation does not constitute a sentence. See also Olcott v. State, 378 So.2d 303 (Fla. 2d DCA 1979); Bracey v. State, 356 So.2d 72 (Fla. 1st DCA 1978). A sentence and probation are discrete concepts which serve wholly different functions.

396 So.2d at 1110

Probation with or without incarceration as a condition of probation may be ordered pursuant to § 948.01(3) with or without an adjudication of guilt. But in either case the trial court stays or withholds the imposition of sentence on a defendant. The appellant in this case received a true split sentence pursuant to § 948.01(4), not an order of probation. The sentence received provided in part as follows:

it is the sentence of the law and judgment of the court that you be committed to the custody of the Division of Corrections of the State of Florida to be imprisoned for the term of five years, after serving two years of said sentence, balance to be suspended, with credit for two days jail time (1-10-78 to 1-11-78) then placed on three years probation.

Relying on the emphasized language from Villery in the majority opinion, i. e., “nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation,” the appellant contends that he can only be re-sentenced to a maximum term of three years (i. e., the original term of probation), less credit for the time previously served.

At first glance, the appellant’s position appears to be supported by an isolated reading of the emphasized language in Villery. However, as noted above, a careful reading of Villery readily shows that in some portions of the opinion, the court refers to true split sentences, while in other portions, the court refers to “incarceration as a condition of probation, also known as the split sentence probation alternative.” 396 So.2d at 1109. Given this context, Villery’s prohibition against imposing a sentence of imprisonment in excess of the original total term of probation can only apply to incarceration as a condition of probation. This construction of Villery is fully supported by the fact that when the supreme court discusses the preceding prohibition, the court prefaces its discussion by stating that “[accordingly, one who has been given a split sentence probation [i. e., incarceration as a condition of probation] contrary to the mandate of this decision is entitled ... to have the illegal order [not sentence] corrected.” 396 So.2d at 1111-12. (emphasis supplied) The court then states that the trial court, “[i]n correcting the order [not sentence], ... [may not] impose a sentence of imprisonment for a period of time in excess of the original total term of probation.” Id. at 1112. (emphasis supplied)

To ignore this construction of Villery would result in ludicrous consequences. For example, assume that a defendant received a true split sentence of 35 years, with the provision that after having served 30 years in prison, the balance of the sentence would be suspended and the defendant would be placed on probation for five years. Under the argument advanced by the appellant, when this defendant moves to correct his sentence pursuant to Villery, the trial court, after withdrawing the original sentence, could only sentence the defendant to five years imprisonment. It cannot be inferred that the Florida Supreme Court could have possibly intended such a result. In correcting a true split sentence, the trial court may impose any sentence of imprisonment not exceeding the total term of the original sentence in prison and the probation imposed, less credit for time previously served. Lewis v. State, 402 So.2d 482, 485 (Fla. 2d DCA 1981).

In support of this construction, it might also be pointed out that the emphasized language relied on by the appellant is a verbatim repetition of a portion of the original Villery decision reported at 396 So.2d 1107, 1112. In the original opinion, the court was considering only facts which involved incarceration as a condition of probation under § 948.01(3), and not a true split sentence. When the court prohibited the imposition of “a sentence of imprisonment for a period of time in excess of the original term of probation,” the court was referring only to a limitation on the trial court when it resentenced a prisoner because of “an illegal probation order ... . ” 396 So.2d at 1112. This prohibitive language was carried over to Villery revisited, but it is not applicable to a true split sentence. ' • • 
      
       For instance, assume that before Villery, a defendant was placed on probation for five years, with the condition that he be incarcerated for the first two years. After Villery, the trial court could withdraw this order of probation and sentence the defendant to spend up to five years in prison (i. e., the original total term of probation), less credit for time previously served.
     