DANIEL STEVEN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1981-06-10
No. 80-1211
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.
399 So. 2d 498 Florida District Court of Appeal, Fifth District (1981) Positive Treatment
Cited by 8 cases
Topics
Split Sentence Probation

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Opinion of the Court
COBB, Judge.

COBB, Judge.

Appellant Smith was convicted of aggravated battery in violation of section 784.045, Florida Statutes (1979). The trial court sentenced Smith to the custody of the Department of Corrections for fifteen years with five years of that custody to be imprisonment, followed by ten years of that custody to be probation. It is this sentence that Smith is appealing.

In the recent case of Villery v. Florida Parole and Probation Comm’n., 396 So. 2d 1107 (Fla.1981), the Florida Supreme Court stated that a sentence of incarceration for one year or more that is imposed as part of a split sentence pursuant to section 948.-01(4), Florida Statutes (1979) is invalid.

Accordingly, the sentence is reversed and we remand this case to the trial court with directions to impose a new sentence that is in conformity with Villery.

REMANDED with instructions.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

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  • In re The Est. OF Walter J. Jones v. Jones, 472 So. 2d 1299 (Fla. 2d DCA 1985)
    …(citations omitted). As part of the new probate code, our legislature determined that under certain circumstances ademption shall not occur. § 732.606, Fla.Stat. (1981). When the statute applies, the testator’s intent is irrelevant, Owen v. Wilson, 399 So. 2d 498 (Fla. 5th DCA 1981); however, there was no [*1302] indication that the legislature intended that this statute would supplant Florida case law in those instances not covered by it. Since the statute is not applicable to the circumstances of the insta…
  • Century Nat'l Bank OF Broward v. Reed A. Bryan, III, 468 So. 2d 243 (Fla. 4th DCA 1985)
    …ee did not interfere with the conservator’s function. In Mayberry, the court clearly makes a distinction between testamenta [*247] ry dispositions by a voluntary conserva-tee’s estate during his lifetime. 601 P. 2d at 1114. See too Owen v. Wilson, 399 So. 2d 498 (Fla. 5th DCA 1981), which held that section 732.606(1), Florida Statutes (1979), applies to guardians of incompetents and guardians of persons under voluntary guardianships alike. It is not as though entering upon such a proceeding locks a ward in…
  • OTT v. Willa OTT, 418 So. 2d 460 (Fla. 4th DCA 1982)
    …a.L.Rev., No. 1 (1974) at 31. Appellant attempts to distinguish Dobson on the basis that the sale in that case was to the specific devisee. However, this factor is not relevant under the statute. Nor is the intent of the testator. In Owen v. Wilson, 399 So. 2d 498 (Fla. 5th DCA 1981), the Fifth District observed: “To give effect to Section 732.606, any unpaid proceeds of specific devises are to be paid to the devisee regardless of intent. ... ” . For example, subsection (2) refers to sales etc. by the testat…

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