County Criminal Court: CRIMINAL LAW – Sentencing – The Parks Program was not incarceration for purposes of §316.193(6)(b). Sentence reversed. State v. Kliewer, No. CRC 06-37 APANO (Fla. 6th Cir. App.Ct. December 29, 2007).

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-37 APANO

                                                                               UCN52200AP600037XXXXCR

PETER KLIEWER

 

            Appellee.

______________________________/

 

 

Opinion filed ____________________.

 

Appeal from a sentence entered by

the Pinellas County Court

County Judge Edwin Jagger

 

Kate A. Alexander, Esquire

Assistant State Attorney

 

Eilam Isaak, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

            (J. Morris)

 

            THIS MATTER is before the Court on the State’s appeal from a sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court reverses the sentence.

            The defendant was convicted of his second DUI within 5 years. Therefore, pursuant to §316.193(6)(b), Fla. Stat. (2005), he faced a mandatory sentence of 10 days of imprisonment. The State claims the trial court erred in allowing the defendant to serve 8 days of his mandatory 10 day sentence of imprisonment in the Parks Program. This Court agrees.

            Florida Statute §316.193(6)(b), Fla.Stat. (2005), requires that for a second conviction for DUI within 5 years the “court shall order imprisonment for not less than 10 days.” The Parks Programs is a day reporting, jail diversion program that allows certain offenders to perform community service at various non-profit agencies. It is not imprisonment for purposes of this statute.

            When a Florida Statute explicitly states that convicted defendants shall be sentenced to a minimum mandatory term of imprisonment, the trial court is without authority to substitute community control for imprisonment. See State v. Row, 478 So.2d 430 (Fla. 5th DCA 1985). Neither is house arrest considered incarceration. See Licata v. State, 788 So.2d 1063 (Fla. 4th DCA 2001); McCarthy v. State, 689 So.2d 1095 (Fla. 5th DCA 1997).

            In addition, in State v. Strickland, 9 Fla. L. Weekly Supp. 654a (Fla. 4th Cir. Ct. 2002), the court interpreted §316.193(6)(c) --- mandatory penalty for a third DUI within 10 years --- as not permitting house arrest as a substitute for incarceration. The court stated that the statute “refers to imprisonment, and that house arrest does not, under the case law or statute, constitute imprisonment.” Id.

            If community control and house arrest are not incarceration, then neither is the Parks Program. [1] It was, therefore, error for the trial court to order that the defendant be permitted to serve his mandatory term of imprisonment in the Parks Program.

            The appellee’s argument that there was insufficient evidence of a prior conviction is without merit. The record shows that the defendant admitted having a prior conviction.

            IT IS THEREFORE ORDERED that the sentence is vacated, and this case is remanded to the County Court for re-sentencing consistent with this Order and Opinion.

            DONE AND ORDERED in Clearwater, Pinellas County, this _____ day of December, 2007.

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Court Judge

 

 

 

                                                                        ____________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

 

 

 

                                                                        _____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

 

            Honorable Edwin Jagger

 

                        Eilam Isaak, Esq.

 

                        Frank Russo, Esq.

                                                                             



[1] As pointed out in the amicus brief, §951.24(2)(a), Fla. Stat. (2007) allows work release to be used “[w]henever punishment by imprisonment in the county jail is prescribed.”