Is Probation Equivalent to Being Under Sentence of Imprisonment ?

Retroactive application of a statute is generally prohibited unless the statute expressly indicates it is intended to be so applied or it is merely a procedural or remedial change. See Arrow Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994). In this instance, the 1996 amendment to the statute includes probation on the list of prison equivalents for which the aggravator "under sentence of imprisonment" might be applied. Previously, this court upheld the retroactive application of the amendment adding commission of a crime while on community control as an aggravating factor. See Trotter v. State, 690 So. 2d 1234 (Fla. 1996)(Trotter II). In Trotter II, the Court noted that "[c]ustodial restraint has served in aggravation in Florida since the 'sentence of imprisonment' circumstance was created," and held that the addition of the community control portion of the statute constituted a refinement of the sentence of imprisonment factor, not a substantive change in the law. Id. at 1237. An examination of Trotter v. State, 576 So. 2d 691 (Fla. 1990)(Trotter I) belies the State's contention that probation and community control are essentially the same punishment. In his opinion concurring part and dissenting in part, Justice McDonald noted: The legislature created community control in chapter 83-131, Laws of Florida, the Correctional Reform Act of 1983. In its findings of fact the legislature stated: "The increased use of noncustodial alternatives and nonprison custodial alternatives can alleviate prison overcrowding while still providing a sufficient measure of public safety and assuring an element of punishment." Id. 2(4). Probation is the noncustodial alternative, while community control is the nonprison custodial alternative. 948.001. a person under community control is in supervised custody; one on probation is not. Community control is a harsher sentence than probation. . . . In guidelines sentences the first cell allows community control or a specified term of years. "Or" is disjunctive, not conjunctive, and from this one must conclude that community control is the functional equivalent of imprisonment. The difference between the two is where the custody takes place. The cases cited by the majority which hold that probation is not incarceration are not applicable to one who is sentenced to community control. I am satisfied that one sentenced to community control is under sentence of imprisonment within the definition of subsection 921.141(5)(a). Id. at 695-96. (McDonald, J., concurring in part, dissenting in part). Moreover, the Trotter I majority specifically held, "Probation is not equivalent to being under sentence of imprisonment, for the appellant was not incarcerated." Trotter, 576 So. 2d at 694. See also Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)(finding in a pre-Trotter II decision that the trial court improperly entered a habitual offender sentence when the habitual offender statute referred to probation and defendant was on community control).