DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

EDWARD FIDDEMON,

Appellee.

No. 4D19-0438

[May 27, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Susan Alspector, Judge; L.T. Case No. 10-17981 CF10A.

Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, 

Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Erika Follmer, Assistant 

Public Defender, West Palm Beach, for appellee.

GERBER, J.

The state appeals from the circuit court’s order: (1) granting the 

defendant’s motion to dismiss the state’s violation of probation affidavit

against him arising from a 2010 case, and (2) declaring his probation in 

the 2010 case as having been completed while he was incarcerated on a 

2012 case. The state primarily argues the circuit court erred because the 

defendant had to complete his prison terms on both the 2010 and 2012 

cases before his probation term began on the 2010 case. We agree with 

this argument. Therefore, we reverse the circuit court’s order.

Procedural History

The 2010 and 2012 cases were resolved separately through negotiated 

pleas occurring nine months apart, rather than in one sentencing event.

The circuit court first disposed of the 2010 case. In that case, the 

defendant pled no contest to two charges in exchange for being sentenced 

to three years in prison to be followed by two years on probation, with the 

sentences on both charges to be served concurrently.
2

Nine months later, the same circuit court judge disposed of the 2012 

case. In that case, the defendant pled no contest to three charges in 

exchange for being sentenced to eight years in prison to be served 

concurrently on all three charges and, in the circuit court’s words, “with 

the sentence you’re presently serving in [the 2010 case].” During the 

hearing, the state acknowledged the 2012 case’s concurrent eight-year 

prison terms would be served “concurrent with the case he’s already been 

sentenced on,” i.e., the 2010 case. However, no one at the hearing 

discussed or asked how the 2012 case’s eight-year prison term would 

affect the 2010 case’s two-year probation term.

In 2018, the Department of Corrections released the defendant from 

prison and placed him on two years’ probation for the 2010 case. Later 

that year, the state filed an affidavit alleging the defendant violated his

probation.

The defendant filed a motion to dismiss the 2010 case’s violation of 

probation affidavit. The defendant argued that after he completed the

2010 case’s concurrent three-year prison term, his two-year probation 

term immediately began as a matter of law. Thus, the defendant argued,

he completed the 2010 case’s two-year probation term while serving the 

middle portion of the 2012 case’s eight-year prison term.

The state filed a memorandum opposing the defendant’s motion. The 

state primarily argued the 2010 case’s two-year probation term had been 

tolled as a matter of law until the defendant had completed the 2010 case’s 

three-year prison term and the 2012 case’s eight-year prison term.

The circuit court (a successor judge) held a non-evidentiary hearing, 

during which the parties relied on the same arguments which they had 

raised in their respective motion and memorandum.

The circuit court granted the defendant’s motion to dismiss the 2010 

case’s violation of probation affidavit. The circuit court also declared the 

2010 case’s two-year probation term as having been completed while the 

defendant served the 2012 case’s eight-year prison term. Relying on case 

law holding that a sentence must be served without interruption, the 

circuit court reasoned the 2010 case’s three-year prison term and twoyear probation term could not be separated by the last five years of the 

2012 case’s eight-year prison term.

The circuit court then attempted to distinguish case law holding that

probation is tolled while a prison term is completed. According to the 
3

circuit court, those cases involved courts in different jurisdictions 

imposing sentences in unrelated cases. Here, on the other hand, the same 

judge imposed both the 2010 and 2012 sentences, and mentioned the 

2012 case’s eight-year prison term would be served concurrently “with the 

sentence you’re presently serving in [the 2010 case].”

This appeal followed. The state again primarily argues the 2010 case’s 

two-year probation term had been tolled as a matter of law until the 

defendant had completed the 2010 case’s three-year prison term and the 

2012 case’s eight-year prison term.

The defendant responds that after he completed the 2010 case’s 

concurrent three-year prison term, his two-year probation term 

immediately began as a matter of law. Thus, the defendant argues, he had 

completed the 2010 case’s two-year probation term while serving the 2012 

case’s eight-year prison term, and he was no longer on probation in 2018.

Our Review

Because we have been asked to review an alleged sentencing error 

under section 948.012(1), Florida Statutes (2010), our review is de novo. 

See State v. Flynn, 95 So. 3d 436, 437 (Fla. 4th DCA 2012) (“Because a 

motion to correct a sentencing error involves a pure issue of law, our 

standard of review is de novo.”); State v. Dorsett, 158 So. 3d 557, 560 (Fla. 

2015) (“The interpretation of a statute is a purely legal matter and therefore 

subject to the de novo standard of review.”) (citation omitted).

1. Framing Our Analysis of Section 948.012(1), Fla. Stat. (2010)

The 2010 version of section 948.012(1), Florida Statutes, provided:

Whenever punishment by imprisonment for a misdemeanor or 

a felony, except for a capital felony, is prescribed, the court, 

in its discretion, may, at the time of sentencing, impose a split 

sentence whereby the defendant is to be placed on probation 

or, with respect to any such felony, into community control 

upon completion of any specified period of such sentence which 

may include a term of years or less. In such case, the court 

shall stay and withhold the imposition of the remainder of 

sentence imposed upon the defendant and direct that the 

defendant be placed upon probation or into community 

control after serving such period as may be imposed by the 

court. The period of probation or community control shall 
4

commence immediately upon the release of the defendant from 

incarceration, whether by parole or gain-time allowances.

§ 948.012(1), Fla. Stat. (2010) (emphasis added).1

As emphasized above, section 948.012(1) uses three different phrases 

to refer to when a defendant is to commence a probation term after 

completing a prison term: (1) “upon completion of any specified period of 

such sentence which may include a term of years or less”; (2) “after serving 

such period as may be imposed by the court”; and (3) “immediately upon 

the release of the defendant from incarceration.”

Those three phrases are easy to reconcile and apply as having one 

meaning when the defendant’s sentence involves a single prison term to 

be followed by a single probation term. That is, once the defendant has 

completed the prison term and has been released, the defendant’s 

probation term immediately commences.

However, those three phrases are not as easy to reconcile and apply in 

this case, where the defendant was sentenced to serve a two-year 

probation term after the 2010 case’s three-year prison term, at a time 

when he was still serving the 2012 case’s eight-year prison term.

Taking section 948.012(1)’s first and second emphasized phrases in 

isolation – that a defendant is to be placed on probation “upon completion 

of any specified period of such sentence which may include a term of years 

or less” and “after serving such period as may be imposed by the court” –

seemingly would have required the 2010 case’s two-year probation term to 

1 The current version of section 948.012(1) contains minor amendments from 

the 2010 version, none of which are material to this case. See § 948.012, Fla. 

Stat. (2019) (“Whenever If punishment by imprisonment for a misdemeanor or a 

felony, except for a capital felony, is prescribed, the court may, at the time of 

sentencing, impose a split sentence whereby the defendant is to be placed on 

probation or, with respect to any such felony, into community control upon 

completion of any specified period of such sentence which may include a term of 

years or less. In such case, the court shall stay and withhold the imposition of 

the remainder of sentence imposed upon the defendant and direct that the 

defendant be placed upon probation or into community control after serving such 

period as may be imposed by the court. Except as provided in s. 944.4731(2)(b) 

and subsection (6), Tthe period of probation or community control shall 

commence immediately upon the release of the defendant from incarceration, 

whether by parole or gain-time allowances.”) (strikethrough and underling added 

to show amendments).
5

have commenced immediately after the defendant completed the 2010 

case’s three-year prison term.

On the other hand, taking 948.012(1)’s third phrase in isolation – that 

a defendant is to be placed on probation “immediately upon the release of 

the defendant from incarceration” – seemingly would have required the

2010 case’s two-year prison term to be tolled until after the defendant had 

completed both the 2010 case’s three-year prison term and the 2012 case’s 

eight-year prison term.

Our duty, however, is not to view any one or more of section 

948.012(1)’s three clauses in isolation. As our supreme court held in State 

v. Knighton, 235 So. 3d 312 (Fla. 2018):

[W]e will not look merely to a particular clause in which 

general words may be used, but will take in connection with 

it the whole statute . . . . Adverting to our catalogue of rules of 

statutory construction,

[w]e are required to give effect to every word, phrase, 

sentence, and part of the statute, if possible, and words 

in a statute should not be construed as mere 

surplusage. Moreover, a basic rule of statutory 

construction provides that the Legislature does not 

intend to enact useless provisions, and courts should 

avoid readings that would render part of a statute 

meaningless.

Id. at 316 (citation and internal quotation marks omitted).

Applying those principles, our supreme court already has analyzed 

section 948.012(1)’s predecessor statute, containing the exact same 

language. The supreme court’s analysis guides our conclusion here.

2. The Florida Supreme Court’s Guidance in Analyzing the Statute

In Horner v. State, 617 So. 2d 311 (Fla. 1993), the defendant entered a 

plea on three separate cases and was sentenced to concurrent prison 

terms followed by concurrent probation terms on each case. Id. at 312. 

While on probation, the defendant committed new crimes, and the state 

sought to revoke probation. Id. At the revocation hearing, the trial court 

sentenced the defendant to longer concurrent prison terms in the first two 

cases. Id. Following imprisonment, the defendant was to serve a probation 

term for the second case followed by a consecutive probation term for the 
6

first case. Id. These probationary periods were to be followed by four

consecutive longer probationary terms for the third case. Id.

The defendant appealed, arguing her sentence violated section

948.012(1)’s predecessor, section 948.01(8), Florida Statutes (1989). Id. 

Specifically, the defendant argued the trial court’s imposition of the second 

case’s probation term created a time gap between the first case’s prison 

term and probation term, thereby violating section 948.01(8). Id.

The supreme court found the defendant’s argument unpersuasive. Id. 

The supreme court framed the issue as whether section 948.01(8)

“prohibits a separation between incarceration and probation as to each 

case of a multiple-case sentence, or merely bars a period of freedom 

between portions of an individual’s overall sentence.” Id. (emphasis added). 

The supreme court concluded the latter interpretation was correct. Id.

The supreme court began its reasoning by encapsulating section 

948.01(8)’s pertinent words and phrases as follows:

Whenever ... the court ... at the time of sentencing, impose[s] a 

split sentence whereby the defendant is to be placed on 

probation ... upon completion of any specified period of such 

sentence[,] ... [t]he period of probation ... shall commence 

immediately upon the release of the defendant from 

incarceration....

Id. The supreme court then concluded its reasoning as follows:

The statute requires that the incarcerative portions of the 

sentencing be completed before the non-incarcerative portions 

begin. A probationary term that falls between or interrupts an 

incarcerative sentence or sentences is illegal. ...

The immediacy requirement of the statute necessitates a 

correspondence between the incarcerative and probationary 

terms, and is not based upon an individual case, but upon 

one sentencing event. The statute defines split sentencing 

with regard to the sentencing that the trial court is imposing 

for all cases against the defendant. The preclusion of a time 

gap can reasonably be read to bar only a gap between release 

from incarceration on all counts and probation. We hold that 

when there is one sentencing that includes incarceration and 

either community control or probation on a variety of counts or 

cases, a probationary split sentence does not create gap time 
7

so long as community control or probation immediately follows 

incarceration.

Id. at 312-13 (emphases added; internal citations and quotation marks 

omitted).

3. Applying Our Supreme Court’s Reasoning to the Instant Case

Our supreme court’s reasoning in Horner applies here. Giving effect to 

section 948.012(1)’s “every word, phrase, sentence, and part of the 

statute,” Knighton, 235 So. 3d at 316, we conclude the 2010 case’s twoyear probation term was tolled as a matter of law until after the defendant 

had completed both the 2010 case’s three-year prison term and the 2012 

case’s eight-year prison term.

Our conclusion complies with Horner’s mandate that “the incarcerative 

portions of the sentencing be completed before the non-incarcerative 

portions begin.” 617 So. 2d at 312. In other words, our conclusion does 

not create an impermissible time gap between the 2010 case’s three-year 

prison term and two-year probation term.

We acknowledge one factual distinction between Horner and the instant 

case. Horner involved “one sentencing event,” that is, “one sentencing that 

includes incarceration and either community control or probation on a 

variety of counts or cases.” Id. at 313. The instant case, however, involved 

two sentencing events. That is, the circuit court first disposed of the 2010 

case, then nine months later, the same circuit court judge disposed of the 

2012 case.

However, we do not consider this factual distinction of “one sentencing 

event” versus “two sentencing events” to change this appeal’s outcome. 

Rather, the fact that this appeal involves two sentencing events better 

supports the state’s argument. The later-imposed 2012 case’s prison term 

prevented the 2010’s case’s probation term from commencing immediately 

after the defendant completed the 2010 case’s prison term. To hold that 

the defendant completed the 2010 case’s probation term during the 2012 

case’s prison term would be inconsistent with the rehabilitative concept of 

probation which presupposes that the probationer is not in prison. If 

anyone is to be held responsible for the defendant having to serve the 2010 

case’s probation term after having completed the 2012 case’s prison term, 

it is the defendant, who committed the offenses leading to the 2012 case’s 

prison term.
8

Thus, we conclude the successor judge erred in granting the 

defendant’s motion to dismiss the state’s violation of probation affidavit 

against him in the 2010 case, and declaring his probation in the 2010 case 

as having been completed while he was incarcerated on the 2012 case. 

4. Our Sister Courts’ Support for Our Conclusion

Our sister courts have issued opinions involving very similar facts and 

holdings which support our conclusion in the instant case. Although some 

of these cases contain minor factual distinctions to the instant case, we 

do not consider any of these factual distinctions to be dispositive.

The first such case was Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 

1991), which we examine in detail. In Porter, the appellant was sentenced 

in one county to a thirty-month prison term, to be followed by a two-year 

probation term. Id. at 399. Seven months later, the appellant was 

sentenced in a second county on three additional cases to one five-year 

and two nine-year prison terms, to run concurrently with each other but 

consecutively to the first county’s sentence. Id.

The appellant served the first county’s prison term and the second 

county’s prison term consecutively as ordered. Id. Upon the appellant’s 

release from prison, he argued in the first county’s court that the first 

county’s probation term commenced immediately after he completed the 

first county’s prison term, and thus was completed while he was serving 

the second county’s prison term. Id. at 399-400. According to the 

appellant, commencing the first county’s probation term only after his 

release on the second county’s prison term would transform the first 

county’s sentence into an unlawful intermittent sentence. Id. at 400.

The first county’s court ruled the appellant was still subject to the first 

county’s probation term, reasoning:

It is well settled that a defendant cannot serve a prison term 

and be on probation simultaneously. The subsequentlyimposed sentences from [the second county] prevented the 

[first county’s] probationary terms from commencing 

immediately upon completion of [the first county’s] prison 

terms. This result, however, does not create ex post facto an 

illegal intermittent sentence. The [appellant’s] legal split 

sentences in [the first county] ... were interrupted by a 

subsequently-imposed prison sentence from [the second 

county]. To hold otherwise would be inconsistent with the 

rehabilitative concept of probation which presupposes that 
9

the probationer is not in prison confinement. Any term of 

probation presumed to run when the [appellant] cannot be 

supervised would be a nullity ... [I]n the instant cases, the 

actions of the [appellant] (that is, the commission of offenses 

for which he received the [second county’s] sentences) 

resulted in the interruption of [the first county’s] sentences.

Id.

The First District affirmed, reasoning:

[T]his case involves unrelated sentencing orders, rendered 

at different times in different counties, with the result that 

appellant’s intervening criminal activity and consequent 

sentences, which are unchallenged here, effected [sic] the 

interruption of his sentence. ...

Relying upon Delk v. State, 510 So. 2d 1209 (Fla. 2d DCA 

1987)[,] and Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985), 

appellant further argues that he is entitled to credit against 

[the first county’s probation term] for the time served in prison 

on the [second county’s] sentences. He asserts that since the 

[second county’s] prison terms extended beyond the [first 

county’s] probationary term ... he is entitled to release from 

[the first county’s] probationary term because that term would 

have expired while he remained in prison on the second 

county’s] sentences ....

... [I]n recognition of the sanctity of a [trial court’s]

jurisdiction and authority to lawfully dispose of cases before

[it], without the interference of unrelated sentencing orders, 

we decline to apply those holdings, which involve sentences 

imposed by the same trial judge at the same time, to the 

instant case which involves two sentencing orders, which are 

unrelated in time, place and forum.

Id. at 400-01.

Porter’s reasoning has continued to be relied upon in more recent

district court cases involving similar facts:

• State v. Savage, 589 So. 2d 1016, 1018 (Fla. 5th DCA 1991) (the 

defendant was sentenced on two cases to a prison term to be 

followed by a probation term; while serving the prison term, the 
10

defendant was sentenced in another county to a prison term 

“consecutive to any sentence currently being served”; after being 

released, the defendant was charged with violating the first two 

cases’ probation; the defendant filed a rule 3.850 motion, alleging 

the first two cases’ probation term had expired during the later 

case’s prison term; the trial court erred in granting the motion; 

“Simple logic would seem to dictate that, where a defendant is 

incarcerated in another jurisdiction, a probationary period from an 

unrelated sentence would be tolled since a probationary term should 

not be allowed to expire simply because a defendant has decided to 

incur new prison time as a result of a separate and distinct offense.”)

• Bradley v. State, 721 So. 2d 775, 775-76 (Fla. 5th DCA 1998) (while 

the defendant was incarcerated on one charge, he was sentenced on 

an unrelated charge to one year of community control to be followed 

by one year of probation; after his release from incarceration, he was 

charged with violating the terms of his community control; the trial 

court properly rejected the defendant’s argument that his 

community control and probation terms had expired during his 

incarceration, because those terms were tolled during his 

incarceration).

• Crawley v. State, 787 So. 2d 886, 887 (Fla. 2d DCA 2001) (affirming 

sentence where the defendant was sentenced in one case to a prison 

term to be followed by a probation term, then was sentenced in a 

second unrelated case in the same county to a prison term to be 

served consecutively to the first case; pursuant to Porter, “We ... 

determine that [the defendant] will serve the sentence of 

incarceration from [the first case] and the consecutive sentence of 

incarceration from the [second case], to be followed by the 

probationary term also imposed in the earlier [first case].”).

• Schurman v. State, 847 So. 2d 569, 570 (Fla. 1st DCA 2003) (“It is 

well established that a person cannot be sentenced to simultaneous 

prison and probation. Consequently, although the incarcerative 

portion of [the defendant’s] sentence ... may have expired prior to 

his release from prison ... the probationary portion of that sentence 

was tolled while he remained in prison on other sentences, and it 

did not begin to run until appellant was released .... Therefore, his 

probationary sentence ... was in effect at the time he violated 

probation, and the trial court properly denied [his] claim of 

ineffective assistance of counsel.”) (internal citations omitted).
11

• Foster v. State, 889 So. 2d 951, 952 (Fla. 5th DCA 2004) (affirming 

order summarily denying rule 3.800(a) motion where the defendant

received a prison term to be followed by a probation term in one 

circuit, and received in another circuit a prison term “to be served 

concurrently to any other sentence he is presently serving”; 

sentences were not illegal because, where a defendant receives 

separate sentences from different courts at different times, “the 

probationary portion of the sentence that completes its incarcerative 

portion at first is tolled until the imprisonment portion of the latter 

sentence is complete”).

The reasoning of Porter and its progeny apply equally to the instant 

case. Here, the later-imposed 2012 case’s prison term prevented the 

2010’s case’s probation term from commencing immediately after the 

defendant completed the 2010 case’s prison term. The defendant, by his 

conduct, bears the responsibility for this outcome.

We acknowledge one factual distinction between the Porter line of cases

and the instant case. Porter and its progeny all involve the sentencing 

orders of two different judges, whereas the instant case involves the 

sentencing orders of the same judge.

However, we do not consider this factual distinction of “the same judge” 

versus “two different judges” to be dispositive. The more significant facts 

in the instant case are that the 2010 case and the 2012 case were 

unrelated and were disposed of at different times. We recognize that the 

circuit court, when issuing the 2012 sentencing order, stated the 2012 

case’s prison term would be served “concurrent with the case he’s already 

been sentenced on,” i.e., the 2010 case. However, the circuit court was 

not specific regarding whether it was referring to the 2010 case’s prison 

term, the 2010 case’s probation term, or both. We choose to interpret the 

circuit court’s statement in such a manner as to uphold the sentences in 

both the 2010 case and the 2012 case.

5. Our Precedent Upon Which Defendant Relies is Distinguishable

The defendant relies upon two of our prior cases – Hatton v. State, 689 

So. 2d 1195 (Fla. 4th DCA 1997), and Wright v. State, 47 So. 3d 972 (Fla. 

4th DCA 2010) – in support of his argument. However, both cases are 

distinguishable.
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a. Hatton v. State

In Hatton, the appellant was sentenced in a single case involving two 

counts. 689 So. 2d at 1195. On Count I, the appellant was sentenced to 

three months in the county jail to be followed by two years on probation. 

Id. On Count II, the appellant was sentenced to one year in the county jail 

to be followed by three years’ probation. Id. The sentences were to run 

concurrently. Id. Therefore, the first nine months of probation on Count 

I was to be served simultaneously with the last nine months of jail on 

Count II. Id.

We reversed the defendant’s sentences to the extent the sentences

imposed simultaneous periods of incarceration and probation, and 

remanded for correction. Id. We reasoned:

Since Horner holds that the statute requires the 

incarcerative portions of the sentencing be completed before 

the non-incarcerative portions, and applies to sentencing on 

all counts as one “sentencing event,” it follows that the 

incarcerative portions of all counts must be completed before 

the probationary portion of any count begins. This conclusion 

is supported by the court’s prior statement that “[t]he 

underlying concept of probation is rehabilitation rather than 

punishment and presupposes the fact that probationer is not 

in prison confinement.” Bernhardt v. State, 288 So.2d 490, 

495 (Fla. 1974).

Hatton, 689 So. 2d at 1195 (emphasis added).

Hatton is distinguishable from the instant case because here, the 

sentencings did not occur in one case on all counts as “one sentencing 

event.” Rather, the instant case involved two unrelated cases which were 

disposed of at different times, that is, “two sentencing events.” Thus, the 

instant case more closely resembles Porter and its progeny, as described 

in the section above.

b. Wright v. State

The other fourth district case upon which the defendant here relies, 

Wright, also involves “two sentencing events,” but is distinguishable for a 

different reason. In Wright, one court sentenced the appellant to a twentyfour month probation term. 47 So. 3d at 973. Five months later, a second 

court in a different circuit sentenced the appellant on an unrelated charge 

to a thirty-six month prison term. Id. The second court expressly 
13

designated the appellant’s prison term as concurrent to the first case’s

probation term. Id.

A month after the first case’s probation term ended, the state filed a 

violation of probation affidavit in that case. Id. The appellant moved to 

dismiss the affidavit, arguing the first court had no jurisdiction to consider 

the affidavit because the alleged violation occurred after the probation 

term ended. Id. The first court denied the appellant’s motion and 

adjudicated him guilty of the violation. Id.

We reversed and remanded for dismissal of the affidavit. Id. Treating 

the issue as one of jurisdiction, we concluded that because the first case’s 

probation term ended before the alleged violation occurred, the appellant 

could no longer be punished under the first case. Id.

The state nevertheless argued the time period from the first case’s 

probation term during which the appellant was serving the second case’s 

prison term should have been tolled, that is, not counted as time served 

on probation. Id. However, we rejected that argument, reasoning in part:

Nothing in the record suggests that the offense for the 

unrelated charge was committed after the sentence of 

probation was imposed. Also plainly [the appellant] had 

already commenced serving the probation six months earlier 

when he was sentenced later on the unrelated charge.

Even more important, the sentencing judge in the later case 

explicitly made that imprisonment concurrent to the probation, 

not consecutive to it. To deem the period of probation tolled 

while he served time on the unrelated charge would, in effect, 

make that confinement consecutive to probation, contrary to 

the actual sentence imposed.

. . . [T]he statute governing probation makes no mention of 

tolling a probationary period that had already commenced

because of the later imposition of sentence on an earlier 

unrelated offense, itself made concurrent with the probation.

Id. at 973-74 (emphasis added).

Wright is distinguishable from the instant case. In the instant case, the 

defendant had not commenced serving the 2010 case’s probation term 

when he was sentenced on the 2012 case’s unrelated charge. Thus, the 

2010 probation term was not being interrupted. We again recognize that 
14

the circuit court, when issuing the 2012 sentencing order, stated the 2012 

case’s prison term would be served “concurrent with the case he’s already 

been sentenced on,” i.e., the 2010 case. However, the circuit court was 

not specific regarding whether it was referring to the 2010 case’s prison 

term, the 2010 case’s probation term, or both. As stated above, we choose 

to interpret the circuit court’s statement in such a manner as to uphold 

the sentences in both the 2010 case and the 2012 case.

Conclusion

Based on the foregoing, we reverse the circuit court’s order granting the 

defendant’s motion to dismiss the state’s violation of probation affidavit 

against him arising from a 2010 case, and declaring his probation in the 

2010 case as having been completed while he was incarcerated on a 2012 

case. We remand for the circuit court to: (1) deem the 2010 case’s twoyear probation term as having commenced on the date when the defendant 

was released from the 2012 case’s prison term; and (2) permit the state to 

proceed on the 2010 case’s alleged violation of probation.

The other arguments which the state raises in support of reversal, and 

which the defendant raises in support of affirmance, lack merit and do not 

require further discussion.

Reversed and remanded for proceedings consistent with this opinion.

LEVINE, C.J., concurs.

CIKLIN, J., dissents with opinion.

CIKLIN, J., dissenting.

I respectfully disagree with the majority. Understandably, the 

defendant seeks the benefit of his carefully constructed plea agreement 

which culminated in a probation sentence that was to run concurrently 

with a prison sentence with the bargained for exchange being that any 

probationary terms were to be subsumed by the agreed upon prison 

sentence. 

At the same time, the state was also bound by the plea agreement. 

Guynn v. State, 861 So. 2d 449, 450 (Fla. 1st DCA 2003) (“The negotiated 

plea agreement placed obligations on both parties.”). The state benefited 

from the plea by being able to dispose of both cases without the expense 

and time of holding trials. The state was obligated to honor the agreement 

of allowing the defendant to serve his sentences concurrently, or 

otherwise, it should have challenged the concurrent sentences and allowed 
15

the defendant to renegotiate his plea. See State v. Simons, 22 So. 3d 734, 

736-37 (Fla. 1st DCA 2009) (recognizing that it is a settled principle of 

criminal procedure that courts may force the government to honor a plea 

agreement); Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA 1994) 

(“If on remand the state is unwilling to accept concurrent prison terms, 

defendant should be allowed to withdraw his plea and be subject to trial, 

but with the opportunity to negotiate a new plea.”).

Here, the two sentences involved the same judge and the same state 

attorney’s office. The 2012 case existed at the time the parties entered 

their arm’s length plea agreement on the 2010 case. With the 

acquiescence of the state, the trial court expressly imposed the sentence 

in the 2012 case on a charge that had already existed prior to the 

negotiated settlement in the 2010 case with the record-confirming 

agreement to run concurrently. Of important note, the offense in the 2012 

case was not a new offense that was committed subsequent to the plea in 

the first case but was actually an existing offense, that was refiled and 

thus, by virtue of an automated clerical system, ended up with a 

chronologically subsequent case number. In other words, this was not a 

case in which the defendant incurred new prison time as a result of a new 

offense. The parties were already well aware of all the charges the 

defendant was facing at the time that both sentences in both cases were 

imposed.

Thus, the caselaw cited by the state and majority (involving tolled 

supervision) simply does not apply particularly because those cases 

involved sentences that arose in different counties. That is, in my opinion, 

the proverbial misapplied apples and oranges comparison to which I 

cannot ascribe. 

Had the sentencing judge who imposed both sentences and the parties 

that were involved in both negotiations intended for the defendant to be 

on some form of supervision following his release, one would expect that 

they would have said so. Similarly, had the parties intended for the 

sentences to run consecutively, one would hope that the record would have 

reflected that. Instead, this record contains language of a concurrent 

sentence. “Where the language of a sentence is clear [the court has] no 

power to change it by speculating that the trial judge meant something 

else.” Roy v. State, 207 So. 2d 52, 55 (Fla. 2d DCA 1967) (quoting Falagan 

v. Wainwright, 195 So. 2d 562, 563 (Fla. 1967)).

Simply put, the state is bound by the plea agreement. See Guynn, 861 

So. 2d at 450. The state benefited from the product of the negotiated plea 
16

by its ability to dispose of both cases without the expense and time of 

holding trials.

In point in fact, if either party had timely appealed the sentence, it 

arguably would have been set aside and the defendant would presumably 

have been allowed to withdraw his plea. Thus, the state is seeking a 

remedy, which the majority embraces, that it could not have obtained on 

appeal: the refashioning of a duly agreed upon sentence, with everyone’s 

eyes wide open.

I respectfully dissent.

* * *

Not final until disposition of timely filed motion for rehearing.