JAMES MCCLELLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in retaining jurisdiction over the entire sentence without stating a particularized justification.
Appellant was convicted of second-degree robbery and sentenced to fifteen years imprisonment. The trial court retained jurisdiction over the entire se…
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LEHAN, Judge.
Appellant was convicted of second degree robbery of a store for which he received a sentence of fifteen years imprisonment. On appeal he raises two points, the first of which is without merit. Appellant contends that the trial court erred in improperly giving a jury instruction for possession of recently stolen property. However, the instruction was proper since the record reflects that the state established an adequate factual basis showing appellant’s possession of stolen money. See State v. Young, 217 So. 2d 567 (Fla.1968); Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979). Within two hours after the offense, a roll of coins, identified as having been stolen from the store, was recovered from the automobile driven by appellant. Also, the coins and currency taken from appellant’s person totaled the approximate amount stolen from the store.
As his second point appellant asserts that the court erred in its retention of jurisdiction over the entire sentence of fifteen years. Although the record does not reflect an objection below, we address this issue since appellant challenges the legality of the sentence. Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980); Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974).
When a trial court retains jurisdiction over a sentence, its jurisdiction is limited to the first third of the maximum sentence imposed. Section 947.16(3), Florida Statutes (1981). See Williams v. State, 374 So. 2d 1086 (Fla. 2d DCA 1976). Also, the court should state with individual particularity its justification for retention of jurisdiction. Section 947.16(3)(a), Florida Statutes (1981). No reason was given for retaining jurisdiction here. Therefore, we affirm the judgment, but we remand with directions that the court vacate that portion of the order retaining jurisdiction over the entire sentence and resentence appellant in compliance with the foregoing statutory requirements.
HOBSON, A.C.J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985)…on direct appeal that the trial court illegally retained jurisdiction over his sentence. That issue was not raised below and the appeal was dismissed without prejudice to raise the issue on a rule 3.850 motion. In a third case, McClellan v. State, 434 So. 2d 1 (Fla. 2d DCA 1983), the appellant claimed that the trial court erred by improperly retaining jurisdiction over his entire sentence. The court addressed this issue on direct appeal even though there was no objection in the trial court because the sen…
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Boone v. State, 711 So. 2d 594 (Fla. 1st DCA 1998)…sion before the jury instruction may be given. See Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981). The instruction is not warranted absent an appropriate factual basis. See Consalvo v. State, 697 So. 2d 805, 805 (Fla.1996); McClellan v. State, 434 So. 2d 1 (Fla. 2d DCA 1983). Perhaps most importantly, the instruction is proper only where the possession is personal, where it involves a distinct and conscious assertion of possession by the accused, and where the possession is exclusive. F.W.B; King v. S…
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Johnson v. State, 502 So. 2d 1352 (Fla. 2d DCA 1987)…e. Williams v. State, 470 So. 2d 864 (Fla. 2d DCA 1985). We are of the opinion that this issue may properly be raised either on appeal or by a motion for postconviction relief. Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985); McClellan v. State, 434 So. 2d 1 (Fla. 2d DCA 1983). Upon remand the trial court should determine whether or not Johnson’s sentence is a guideline sentence. If so it should simply strike the retention provision. If, on the other hand, the trial court again denies the motion it [*13…
Authorities Cited
- State v. Young, 217 So. 2d 567 (Fla. 1968)
- Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979)
- Williams v. State, 374 So. 2d 1086 (Fla. 2d DCA 1979)
- Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974)
- Hines v. State, 289 So. 2d 48 (Fla. 2d DCA 1974)
- Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980)