SHEARUND DURON KING, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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King challenges the revocation of his probation following an armed robbery conviction, arguing that his original sentence was void because it violated Florida's mandatory minimum sentencing statute. The court affirmed the denial of his motion to vacate, holding that King waived his right to challenge the sentence by accepting probation and failing to timely appeal.
The court held that King's original sentence, though illegal under the sentencing statute, was not void. King waived his right to challenge the legality of the sentence by failing to appeal it timely and by accepting and enjoying the benefits of probation. Therefore, the subsequent revocation of probation and re-sentencing were lawful.
[1] A defendant waives the right to challenge an unlawfully lenient sentence by failing to appeal it and subsequently accepting its benefits.
[2] A defendant who has enjoyed and violated probation may not later question the legality of that probation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Having fully accepted the improper sentence in the prior proceedings, the defendant may not subsequently come before the courts advocating a mutually inconsistent position.”
Establishes the principle of waiver through acceptance and inconsistent positions
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Join FLexlaw to unlock all legal intelligenceIn 1976, King pled guilty to armed robbery and received a sentence of three years imprisonment with the last two years suspended and two years probati…
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PEARSON, Judge.
Defendant, Shearund Duron King, pled guilty to armed robbery and was sentenced in 1976 to three years imprisonment with the last two years suspended and two years probation imposed in its stead. (This sentence was illegal as a violation of Section 775.087(2), Florida Statutes (1975), which requires a mandatory three-year sentence of imprisonment for armed robbery.) After serving one year, the defendant was placed on probation. In 1978, his probation was properly revoked for subsequent sexual crimes, and he was sentenced to 30 years imprisonment on the prior armed robbery conviction.
He contends on this appeal from the denial of his motion to vacate, pursuant to Florida Rule of Criminal Procedure 3.850, that the sentence placing him on probation after one year’s imprisonment was a void act and, therefore, that the revocation of his probation and subsequent imprisonment is unlawful.
We affirm the denial of the petition to vacate on the ground that the defendant has waived his right to appeal the unlawfully lenient sentence by his failure to appeal therefrom and his subsequent acceptance of probation based on the conditions imposed. The defendant’s contention that the original sentence was void is not correct.1 The trial court had the jurisdiction to sentence the defendant, and the fault that occurred was the imposition of an improper sentence Under the mandate of the statute. Having fully accepted the improper sentence in the prior proceedings, the defendant may not subsequently come before the courts advocating a mutually inconsistent position. Cf., the general principle in McPhee v. State, 254 So. 2d 406, 409-410 (Fla. 1st DCA 1971).
Ordinarily on an appeal from an order revoking probation, a defendant may not attack the legality of the sentence placing him on probation. See United States v. Francischine, 512 F. 2d 827 (5th Cir. 1975). An exception exists, however, where the sentence is void. See Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977). The defendant here argues that only the probation portion of his sentence was void and, therefore, that he was never lawfully on probation. We hold that the defendant has waived his right to question the legality of a probation, which he has enjoyed and violated. Cf. Smith v. State, 345 So. 2d 1080 (Fla 3d DCA 1977); and Stallings v. State, 319 S.2d 640 (Fla. 1st DCA 1975).
Affirmed.
. “It has been held that such a sentence [an inadequate sentence] is not void.” 21 Am. Jur.2d Criminal Law § 538 (1965).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
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Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984)…jurisdictional error, and harmless error at worst. Appellants may not complain of any error in being placed on probation rather than in a community control program because they accepted the benefits of such improvident placement. Cf. King v. State, 373 So. 2d 78 (Fla.3d DCA 1979); Preston v. State, 411 So. 2d 297 (Fla. 3d DCA 1982). The jurisdictional issue arises from section 958.10, Florida Statutes (1979), and its apparent conflict with sections 958.05(2) and 958.14. Pursuant to section 958.05(2) the ci…
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Domingo Antonio Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989)…ory and even constitutional requirements to the potential benefit of the defendant and to which he agreed may not be the subject of a successful challenge brought only after he has failed to carry any burden imposed upon him. Thus, in King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1197 (Fla.1980), the defendant was sentenced to one year of imprisonment and two years probation, notwithstanding that his crime “required” a mandatory three year prison sentence under section 775.087(2),…
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Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)…having accepted the benefits of being placed on probation in the first place. If the order placing appellant on probation were merely unlawful, his acceptance of the probation would constitute a waiver to attack the later revocation. King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1197 (Fla.1980). Here, however, the order placing appellant on probation was void for lack of jurisdiction, Phillips v. State, 394 So. 2d 233 (Fla. 1st DCA 1981), and a defendant cannot confer jurisdictio…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)
- United States v. Francischine, 512 F.2d 827 (5th Cir. 1975)
- Gulf Mach. Co. & Liberty Mut. Ins. Co. v. Avant, 345 So. 2d 1080 (Fla. 4th DCA 1977)
- Smith v. State, 345 So. 2d 1080 (Fla. 3d DCA 1977)