CARLOS CERVANTES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a probationary order is not a sentence and can be entered upon multiple convictions, and is not invalid under Section 775.021(4) when no sentence is imposed.
The defendant was placed on probation for two offenses, one a necessarily included offense of the other. The defendant appealed the trial court's deni…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Necessarily Included Offense cases and more on FLexlaw
PER CURIAM.
We find no error in the trial court’s denial of the motion to suppress below as, on this record, we cannot say that the arrest in this case was pretextual. State v. Holmes, 256 So. 2d 32 (Fla. 2d DCA 1971), approved, 273 So. 2d 753 (Fla.1972).
We also find no error in the trial court’s order placing the defendant on probation for two offenses, one of which was a necessarily included offense in the other. First, the probationary order was not a general sentence condemned by Dorfman v. State, 351 So. 2d 954 (Fla.1977), because, as our Supreme Court has held, a probationary order is not a sentence, Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1980), and can, therefore, be entered, as here, upon multiple convictions. We recognize that our holding here is in conflict with decisions rendered by two of our distinguished sister district courts of appeal, McCrae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981); Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981); German v. State, 382 So. 2d 146 (Fla. 4th DCA 1980); Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979) and regret that we cannot follow these decisions because, in our view, they mistakenly assume that a probationary order is a sentence.
Second, the probationary order is not invalid under Section 775.021(4), Florida Statutes (1981), because the defendant, as stated above, was not sentenced at all in this case, Villery v. Florida Parole & Probation Commission, supra, which, by definition, makes the above statute inapplicable.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cervantes v. State, 442 So. 2d 176 (Fla. 1983)…McDonald, justice. We accepted Cervantes v. State, 415 So. 2d 105 (Fla. 3d DCA 1982), for review because of conflict with Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, and quash Cervantes. Cervantes was tried without a jury…
-
Sullivan v. State, 525 So. 2d 499 (Fla. 5th DCA 1988)…un concurrently with the others and that all such periods would be consecutive to a 3 year period of incarceration to which defendant was sentenced in yet another case. We deem this latter order to comply with the requirements of Cervantes v. State, 415 So. 2d 105 (Fla. 3rd DCA 1982). However, we vacate the 10 year probation order in Case No. 87-230 because section 812.014, Florida Statutes (Supp.1986), the statute in effect when defendant committed the grand theft of 2 firearms, provides that such crime is…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- State v. Holmes, 256 So. 2d 32 (Fla. 2d DCA 1971)
- Holmes v. State, 273 So. 2d 753 (Fla. 1972)
- Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979)
- Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981)
- Wesley v. State, 400 So. 2d 175 (Fla. 5th DCA 1981)
- McCRAE v. State, 400 So. 2d 175 (Fla. 5th DCA 1981)
- German v. State, 382 So. 2d 146 (Fla. 4th DCA 1980)