VENDUL OLIVER STAFFORD, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. | 1984-08-30
No. 64394
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.
455 So. 2d 385 Florida Supreme Court (1984) Caution
Cited by 47 cases

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Holding

A defendant's probation can be revoked for misconduct that occurs even before the probationary term officially commences, provided the misconduct occurs after the order of probation is entered.


Headnotes

[1] A trial court may revoke probation for misconduct that occurs before the commencement of the probationary term, if the misconduct demonstrates the probationer's unfitness…

[2] Misconduct occurring during the interval between an order of probation and the commencement of the probationary term can be grounds for revocation.

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Facts & Procedural History

Stafford was sentenced to probation for grand theft, to run consecutively with a burglary sentence. After release on parole for the burglary, he commi…

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Opinion of the Court
McDONALD, Justice.

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 burglary and to five years’ probation for grand theft, with the term of probation to run consecutively with the burglary sentence. After Stafford’s release on parole from the burglary sentence, the state filed an affidavit alleging, among other violations, that he had violated his grand theft probation by burglarizing a store. Stafford pleaded no contest to that burglary and received a thirty-month sentence. He later pleaded no contest to the probation violation charge while reserving the right to appeal the trial court’s ruling that his probation could be revoked for misconduct while on parole.

Stafford claims that a defendant’s probation is improperly revoked where, at the time of the offending conduct, the term of probation had not commenced because he was still serving a prior sentence to which his probation was to run consecutively. The district court, rejecting this contention, affirmed the revocation of probation. While acknowledging conflict with Thomas and Johnson, the district court reasoned that the trial court must be free to revoke probation at any time for misconduct which demonstrates the probationer’s unfitness for probation as a sentencing alternative. We agree and approve the decision under review.

Stafford relies on Thomas and Johnson, but, just as the “fifth district did in its opinion, we prefer and cite approvingly from Martin v. State, 243 So. 2d 189 (Fla. 4th DCA), cert. denied, 247 So. 2d 63 (Fla.1971), as follows:

The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. Cf. McNeely v. State, Fla.App.1966, 186 So. 2d 520. Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material respect, the power to revoke probation is an inherent power of the trial court, Bronson v. State, 1941, 148 Fla. 188, 3 So. 2d 873, which may be exercised at anytime [sic] upon the court determining that the probationer has violated the law. State ex rel. Roberts v. Cochran, [140 So. 2d 597 (Fla.1962)]. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not ' yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.

Id. at 190-191. This holding has been consistently followed by the Fourth District, see, e.g., Caudillo v. State, 400 So. 2d 122 (Fla. 4th DCA 1981); Kimble v. State, 396 So. 2d 815 (Fla. 4th DCA 1981); Bracey v. State, 381 So. 2d 370 (Fla. 4th DCA 1980); Hart v. State, 364 So. 2d 544 (Fla. 4th DCA 1978), and has been adopted by the Third District. Williamson v. State, 388 So. 2d 1345 (Fla. 3d DCA 1980).

Stafford, 437 So. 2d at 233-34.

We find that Stafford’s consecutive probation term was subject to revoca tion upon his release from prison on the original burglary offense. The trial court could properly find that Stafford had violated the terms of his probation by committing a burglary while on parole for the separate offense. Accordingly, we approve the decision under review and disapprove Thomas and Johnson to the extent of conflict with this opinion.*

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur. *

We agree with that part of Thomas that holds that a person cannot be on parole and probation at the same time provided that this statement is made in reference to the same offense. But that proposition has no application when there are two separate offenses for which two sentences may be imposed. In those circumstances it is possible to have a prison sentence from which parole may be available and also have probation imposed. Under those circumstances parole and probation may coexist.


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Citator

Cited By (25 total)

  • Underwood v. State, 455 So. 2d 1133 (Fla. 2d DCA 1984)
    …revoking his probation for that case. The Supreme Court of Florida decided during pendency of the instant appeal that a defendant may have his probation revoked for misconduct which occurs before the term of probation has started. Stafford v. State, 455 So. 2d 385 (Fla.1984).…
  • Johnson v. State, 561 So. 2d 1254 (Fla. 2d DCA 1990)
    …t has the power to revoke a defendant’s probation after the order for probation has been entered but prior to the time the probation period actually commences for misconduct which indicates the defendant’s unfitness for probation. Stafford v. State, 455 So. 2d 385 (Fla.1984). However, it cannot be said under the circumstances of this case that appellant’s failure to report four years before he is scheduled to start his probation is misconduct. We, accordingly, reverse and remand with instructions to reinstate…
  • Kirkman v. Louie L. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985)
    …tely release the petitioner. WRIT GRANTED; PETITIONER RELEASED FROM CUSTODY. COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . The parties have not argued that the trial court improperly revoked petitioner’s probation (see Stafford v. State, 455 So. 2d 385 (Fla.1984); Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983)), and Kirkman did not appeal from that order. In any event, the ten year parole period has also virtually expired in this case, so that point would make no material difference. . The pre…

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