CARLOS CERVANTES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that the policy reasons requiring separate sentences for multiple convictions also apply to probation orders.
[1] A general order of probation predicated upon more than one conviction of criminal activity cannot stand; a separate order of probation must be issued for each offense.
[2] The policy reasons requiring separate sentences for multiple convictions apply to orders of probation.
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Join FLexlaw to unlock all legal intelligenceThe trial court withheld adjudication of guilt for two crimes and issued a single probation order without specifying which conviction it was based on.…
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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 and found guilty of two crimes. The court withheld adjudication of guilt. In a separate order, however, the court placed Cervantes on probation for fourteen months. That order did not describe which conviction, or whether both, constituted the predicate for the order. Relying on Dorfman v. State, 351 So. 2d 954 (Fla.1977), Cervantes claimed the probation order was invalid as a general sentence for two offenses. In Dorfman we precluded the use of one sentence for an accumulation of separate adjudications of guilt. In the instant case, on the other hand, the Third District Court of Appeal held that it is not improper to have one probation order predicated on two findings of guilt because a probation order is not a sentence and, therefore, Dorfman does not apply. The Fourth District Court of Appeal in Pearson, however, held that a general order of probation predicated upon more than one conviction of criminal activity cannot stand and that there must be a separate order of probation for each offense.
We refuse to involve ourselves with another esoteric discussion of whether an order of probation is a sentence. Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1980). We hold that the policy reasons requiring separate sentences, as described in Dorfman, apply to orders of probation. We therefore approve Pearson and quash the opinion of the district court on this issue in this cause.* The cause is remanded to the district court with directions to remand to the trial court for a corrected probation order. It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur. *
Not at issue and not disturbed is the affirmance of the denial to suppress.
Cases With Similar Vibessemantic neighbors from the corpus
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Coleman v. State, 496 So. 2d 896 (Fla. 2d DCA 1986)…lary, aggravated assault and shooting into or within a building. A general order of probation predicated upon more than one conviction of criminal conduct is improper. There must be a separate order of probation for each offense. Cervantes v. State, 442 So. 2d 176 (Fla.1983). Therefore, the general order imposing probation upon appellant for the three criminal offenses was improper. Accordingly, we affirm all of appellant’s convictions and his sentence for criminal mischief. We reverse and remand for re-sen…
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State v. Roscoe Malone, III, 489 So. 2d 213 (Fla. 3d DCA 1986)…on is a sentence is apparent from the number of reported cases on the subject. Like the Supreme Court of Florida, “[w]e refuse to involve ourselves with another esoteric discussion of whether an order of probation is a sentence.” Cervantes v. State, 442 So. 2d 176, 177 (Fla. 1983). See United States v. Kamer, 781 F. 2d 1380 (9th Cir.1986) (urging that antiquated semantic distinctions between sentences and probation be set aside); Smith v. United States, 505 F. 2d 893, 895 (5th Cir.1974) (“Probation is a sente…1 / 2
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Darron Moore v. State, 525 So. 2d 1031 (Fla. 2d DCA 1988)…Third, the defendant complains that the trial court erred in failing to file a separate order of probation for each offense. A general order of probation predicated upon more than one conviction of criminal conduct is improper. Cervantes v. State, 442 So. 2d 176 (Fla.1983); Coleman v. State, 496 So. 2d 896 (Fla. 2d DCA 1986). Therefore, on remand the trial court should enter separate orders of probation. Cervantes, 442 So. 2d at 177. Finally, the defendant correctly points out that the trial judge orally s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Pearson v. State, 371 So. 2d 569 (Fla. 4th DCA 1979)
- Cervantes v. State, 415 So. 2d 105 (Fla. 3d DCA 1982)