LOUIS RUSSELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
This is an appeal from the denial of a post conviction motion filed pursuant to Rule 3.850, Fla.R.Crim.P. Appellant was placed on probation for a term of fifteen years with the special condition that he be incarcerated in the State prison for three years. He contends this “sentence” is illegal.
We adopt the holding and the rationale expressed in Olcott v. State, 378 So. 2d 303 (Fla. 2nd DCA 1979) and reverse the “sentence” imposed upon appellant. We also agree with the Second District that a limitation upon the length of a prison term imposed as a condition of probation is a matter of great public importance and should be determined by the Florida Supreme Court consistent with the legislative scheme for parole as reflected in Chapter 947, Florida Statutes (1979).
The order placing the appellant on probation is vacated to the extent that it imposes a three year period of incarceration as a condition of probation and this cause is remanded for further consideration by the trial court consistent with the opinion in Olcott, supra.
MOORE, HERSEY and HURLEY, JJ., concur.
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Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981)…culated by the court, excluding retaliatory or vindictive motivation, in accordance with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also, Cunningham v. State, 385 So. 2d 721 (Fla.3d DCA 1980); Russell v. State, 386 So. 2d 285 (Fla. 4th DCA 1980); and Olcott v. State, 378 So. 2d 303 (Fla.2d DCA 1979). With respect to appellant’s status as a youthful offender, there is no dispute that he was under 21 years of age and met the criteria of § 958.04(2), Florida Statutes, as…
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State v. Russell, 401 So. 2d 1338 (Fla. 1981)…PER CURIAM. Conflict of decisions having been dispelled, the petition is denied, 386 So. 2d 285. Villery v. The Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1980). ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.…
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Scheurer v. State, 396 So. 2d 194 (Fla. 4th DCA 1980)…However, the Supreme Court has recently held that an order of incarceration for one year or more imposed as a condition of probation is illegal. Villery v. The Florida Parole & Probation Commission, 396 So. 2d 1107 (1980). Also see Russell v. State, 386 So. 2d 285 (Fla. 4th DCA 1980). The two year term involved herein is clearly illegal under Villery. Accordingly, the judgment of conviction is affirmed but the order of probation is reversed with directions for further proceedings in accord with the Supreme…
Authorities Cited
- Chauncey Patrick Olcott v. State, 378 So. 2d 303 (Fla. 2d DCA 1979)