FRANK WARMBLE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that imposing incarceration exceeding one year as a condition of probation is unlawful and constitutes fundamental error.
[1] Incarceration as a condition of probation exceeding one year is unlawful.
[2] The rule that incarceration as a condition of probation exceeding one year is unlawful is retroactive.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of murder and firearm offenses and sentenced to probation with a 15-year prison condition. The Supreme Court subsequently rule…
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[*1165] FERGUSON, Judge.
Appellant was convicted of second degree murder, unlawful possession of a firearm while committing a felony, and possession of a short-barrelled shotgun. For the murder conviction appellant was adjudicated guilty, placed on probation for a period of twenty (20) years with the special condition that he serve fifteen (15) years in the state prison. Appellant alleges that the trial court erred in, (1) refusing to give written requested instruction on the question of insanity and intoxication and (2) imposing a long jail sentence as a condition of probation.
We find the first argument to be without merit and will address only the second point of this appeal.
The Supreme Court has ruled, subsequent to the sentence herein, that incarceration as a condition of probation which exceeds one year is unlawful. Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1980). Villery is expressly made retroactive.
The State urges here, as it did in Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981), that if defendant is to be relieved of the illegal sentence, relief should come from the trial court on a motion under Rule 3.850, Fla.R.Crim.P. We agree that it is more expeditious and less expensive to present sentencing questions to the trial court under Rule 3.850 and we have encouraged defendants to adopt such a course. Gonzalez v. State, supra; Ruiz v. State, 384 So. 2d 723 (Fla. 3d DCA 1980); Abraham v. State, 382 So. 2d 382 (Fla. 3d DCA 1980). However, appellate courts are obligated to consider appeals based on fundamental error even where the issue was not raised in the trial court. Absent legislative authority, the imposition of a long mandatory jail term which precludes the potential for parole is fundamental error. Gonzalez, supra; Cunningham v. State, 385 So. 2d 721 (Fla. 3d DCA 1980); Hamm v. State, 380 So. 2d 1101 (Fla. 2d DCA 1980).
We affirm in part, reverse in part, and remand for resentencing in accordance with Villery, supra.
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Cited By
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Brosz v. State, 466 So. 2d 256 (Fla. 5th DCA 1985)…rit. The trial court had no legislative authority to sentence Brosz under the sentencing guidelines. Such error is fundamental and may be raised for the first time on appeal. See Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984); Warmble v. State, 393 So. 2d 1164, 1165 (Fla. 3d DCA 1981). And, due to the prosecutor’s initiation of the sentencing guidelines error, this is not an appropriate case for application of the invited error doctrine. Judgment AFFIRMED; sentence REVERSED and REMANDED for resentenc-ing…
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Brown v. State, 435 So. 2d 940 (Fla. 3d DCA 1983)…ffender sentence. We recognize this sentencing error despite the defendant’s failure to preserve the issue below. See Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981); accord, Spikes v. State, 405 So. 2d 430 (Fla. 3d DCA 1981); Warmble v. State, 393 So. 2d 1164 (Fla. 3d DCA 1981); but see Hampton v. State, 399 So. 2d 441 (Fla. 5th DCA 1981); Thomas v. State, 394 So. 2d 548 (Fla. 5th DCA 1981); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA), approved on oth…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Cunningham v. State, 385 So. 2d 721 (Fla. 3d DCA 1980)
- Hamm v. State, 380 So. 2d 1101 (Fla. 2d DCA 1980)
- Abraham v. State, 382 So. 2d 382 (Fla. 3d DCA 1980)
- Ruiz v. State, 384 So. 2d 723 (Fla. 3d DCA 1980)