WALTER LEE JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Lee Johnson appealed the revocation of his probation, arguing that his three-year probation term had expired before he was charged with violations because it began when he was released on parole. The Florida District Court of Appeal affirmed the revocation, holding that probation and parole are separate statuses and Johnson's probation term began when his parole expired, not when he was released from prison.
The court held that probation and parole are separate statuses that cannot exist simultaneously, and therefore Johnson's probation term began on January 31, 1980, when his parole expired, not when he was released from prison. Accordingly, the trial court had jurisdiction to revoke his probation.
[1] A term of probation does not commence while a defendant is serving a term of parole.
[2] Probation and parole are distinct legal statuses and cannot be held concurrently.
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Join FLexlaw to unlock all legal intelligence“a person cannot be on probation and parole at the same time, as probation and parole have separate identities and must be treated separately”
Establishes the foundational legal principle that probation and parole are mutually exclusive statuses that must run sequentially, not concurrently
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Join FLexlaw to unlock all legal intelligenceJohnson was sentenced in February 1975 to five years in prison for aggravated assault and battery, and in March 1975 to three years of probation for f…
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SCHEB, Judge.
. Defendant Walter Lee Johnson appeals from a final order revoking his probation.
On February 17, 1975, defendant was adjudged guilty of aggravated assault and aggravated battery and was sentenced to concurrent five-year terms of imprisonment. On March 4, 1975, he was found guilty of both forcing and conspiring to force one to become a prostitute. For these offenses he was placed on concurrent three-year terms of probation to begin at the expiration of the five-year prison sentence. Defendant began his prison sentence on February 17, 1976, and was placed on parole on January 31,1978. His parole expired on January 31, 1980.
On April 2, 1981, defendant’s probation officer executed an affidavit alleging three violations of probation. On November 20 the trial court found defendant in violation of his probation and sentenced him to concurrent five-year prison terms on the prostitution offenses. This appeal ensued.
Defendant’s only argument is that his term of probation began from the day he was placed on parole and expired prior to his being charged with a violation of his probation. If this were true, the court would have been without jurisdiction to entertain proceedings for revocation. Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978). We disagree, however, with defendant because a person cannot be on probation and parole at the same time, as probation and parole have separate identities and must be treated separately. See Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). Thus, defendant’s term of probation began on January 31, 1980, when his parole expired, not when he was released on parole from prison.
Defendant cites State v. Tavel, 407 So. 2d 953 (Fla. 3d DCA 1981), to support his argument that his probation began immediately upon release from prison and not upon termination of parole. In Tavel the defendant’s probation began immediately upon his release from prison. There, however, it is not clear whether the defendant was actually on parole when his probation commenced. Thus, we do not believe our decision is in conflict with Tavel. Accordingly, we hold that the trial court had jurisdiction, and we affirm the revocation of defendant’s probation and the sentence imposed by the trial court.
GRIMES, Acting C.J., and SCHOON-OVER, J., concur.
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Vendul Oliver Stafford v. State, 455 So. 2d 385 (Fla. 1984)…McDONALD, Justice. We have for review State v. Stafford, 437 So. 2d 232 (Fla. 5th DCA 1983), because of conflict with Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983), and Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982), review denied, 427 So. 2d 737 (Fla.1983). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution and approve Stafford. In 1977 the trial court sentenced Stafford to five years’ imprisonment for burglar…
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Easton v. State, 472 So. 2d 1369 (Fla. 3d DCA 1985)…e addition of this sentence in 1983 expressly confirms the holding of State v. Tavel, 407 So. 2d 953 (Fla. 3d DCA 1981), pet. for review denied, 417 So. 2d 331 (Fla.1982); but cf., Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981); Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982), pet. for review denied, 427 So. 2d 737 (Fla.1983).…
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Donnie Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983)…m to fifteen years imprisonment. A person cannot be on parole and probation at the same time. See Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). In Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982), this court explained that in the case of a prison sentence followed by probation where the prisoner is later paroled, his term of probation does not commence until the expiration of his parole. Since appellant’s term of probati…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)
- State v. Tavel, 407 So. 2d 953 (Fla. 3d DCA 1981)