JOSEPH ROBERT HART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Hart appeals his conviction based on a probation violation, challenging whether a trial court can revoke probation for conduct occurring before the probationary term commenced. The court affirmed, holding that trial courts have inherent power to revoke probation based on criminal conduct occurring after the probation order is entered but before the probationary term begins.
The court affirmed, holding that trial courts possess inherent power to revoke probation based on criminal conduct occurring after the probation order is entered, regardless of whether the probationary term has commenced. The court rejected the distinction between probation that has commenced and probation not yet begun.
[1] A court may revoke an order of probation, the term of which has not yet commenced, if the defendant engages in misconduct subsequent to the entry of the probation order.
[2] A defendant may be found in violation of probation for criminal conduct occurring during the interval between the date of a probation order and the commencement of the pr…
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Join FLexlaw to unlock all legal intelligence“To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society.”
Establishes the policy rationale for allowing probation revocation even before the probationary term commences
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Join FLexlaw to unlock all legal intelligenceHart was convicted of two felonies and sentenced to consecutive sentences. The first sentence was five years incarceration with three and one-half yea…
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MOORE, Judge.
This is an appeal from a conviction and sentence for a felony which was predicated upon a violation of probation. We affirm.
Appellant was convicted of two separate felonies for which he received consecutive sentences. The first sentence was for a period of five years incarceration, the last three and one-half years of which were to be suspended with the appellant being placed on probation. The second sentence was to five years probation, said sentence to run consecutive to the first sentence. Appellant served the one and one-half years confinement and commenced his probation under the first sentence. During this time appellant entered a guilty plea to a new felony occurring during his probation and this violation of the law was used as support for an affidavit charging a violation of the probation upon which appellant was placed, but which he had not commenced serving. Appellant’s motion to dismiss the charges alleging a violation of probation was denied, whereupon he entered a plea of no contest to the violation, reserving his right to appeal the denial of his motion to dismiss. The court revoked the second probation and sentenced appellant to another period of incarceration. This appeal followed.
Appellant contends that as a matter of law the court could not revoke a sentence of probation which appellant had not commenced serving. This precise question was decided by this court in Martin v. State, 243 So. 2d 189 (Fla. 4th DCA 1971) wherein we said:
“The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. [Citation omitted]. Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material re spect, the power to revoke probation is an inherent power of the trial court, [citation omitted] which may be exercised at any time upon the court determining that the probationer has violated the law. [Citation omitted]. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.” 243 So. 2d at 190-191. (Emphasis ours).
Appellant would distinguish Martin. Although Martin involved a single conviction, there, as here, the acts giving rise to the revocation of probation occurred prior to the commencement of probation. We are persuaded that Martin is controlling and the judgment of conviction and sentence is therefore affirmed.
AFFIRMED.
BERANEK, J., and FRANZA, ARTHUR J., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Vendul Oliver Stafford v. State, 455 So. 2d 385 (Fla. 1984)…holding has been consistently followed by the Fourth District, see, e.g., Caudillo v. State, 400 So. 2d 122 (Fla. 4th DCA 1981); Kimble v. State, 396 So. 2d 815 (Fla. 4th DCA 1981); Bracey v. State, 381 So. 2d 370 (Fla. 4th DCA 1980); Hart v. State, 364 So. 2d 544 (Fla. 4th DCA 1978), and has been adopted by the Third District. Williamson v. State, 388 So. 2d 1345 (Fla. 3d DCA 1980). Stafford, 437 So. 2d at 233-34. We find that Stafford’s consecutive probation term was subject to revoca [*387] tion upon his…
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Malloy v. State, 380 So. 2d 501 (Fla. 2d DCA 1980)…two years in state prison. Appellant cites O’Steen v. State, 261 So. 2d 208 (Fla.1st DCA 1972), for the proposition that conduct occurring prior to the probation order cannot form the basis for a revocation of probation. Relying upon Hart v. State, 364 So. 2d 544 (Fla.4th DCA 1978), and Martin v. State, 243 So. 2d 189 (Fla.4th DCA 1971), the state argues that the revocation was proper because the offending conduct took place subsequent to the entry of appellant’s guilty plea. We find that Hart and Martin ar…
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Bracey v. State, 381 So. 2d 370 (Fla. 4th DCA 1980)…nce were to run consecutively. On appeal defendant contends the trial court had no jurisdiction to revoke his probation because the probation period had not yet begun. This issue has been previously [*371] dealt with by this Court in Hart v. State, 364 So. 2d 544 (Fla. 4th DCA 1979), and Martin v. State, 243 So. 2d 189 (Fla. 4th DCA 1971), wherein we ruled directly to the contrary. The judgment and conviction below is affirmed. AFFIRMED. ANSTEAD and HURLEY, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shadrick A. Martin, Jr. v. State, 243 So. 2d 189 (Fla. 4th DCA 1971)