Schesny v. State

Full title: DANIEL EDWARD SCHESNY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, First District

Date published: Aug 2, 1990

564 So. 2d 640 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-1304.

August 2, 1990.

An appeal from the Circuit Court for Santa Rosa County; Ben Gordan, Judge.

Barbara M. Linthicum, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Daniel Edward Schesny appeals a judgment and sentence adjudicating him guilty of two counts of lewd and lascivious assault and sentencing him to concurrent terms of 6 years' incarceration to be followed by 5 years' probation on the ground that the sentence violates his constitutional protection against double jeopardy. In accordance with Poore v. State, 531 So.2d 161 (Fla. 1988), we affirm the probationary split sentence. We certify to the supreme court, however, the following question as one of great public importance:

DOES A DOUBLE JEOPARDY VIOLATION RESULT FROM THE IMPOSITION OF A PROBATIONARY SPLIT SENTENCE WHEN THE LEGISLATURE HAS NOT EXPLICITLY AUTHORIZED THAT DISPOSITION IN THE SENTENCING ALTERNATIVES OF SECTION 921.187, FLORIDA STATUTES?

AFFIRMED.

BOOTH and SMITH, JJ., concur.