ROBERT WHITCHARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Whitchard appeals his original three-year sentence for manslaughter followed by probation, arguing it violated the Florida Supreme Court's decision in Villery v. Florida Parole and Probation Commission. The Third District Court of Appeal affirms, holding that Whitchard waived his right to challenge the sentence by accepting and enjoying probation and then violating it.
Whitchard waived his right to challenge the original sentence by accepting and enjoying probation after it was imposed, then violating its terms. The issue of credit for time served cannot be raised for the first time on appeal but must be presented through a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.
[1] A defendant who accepts and benefits from a probationary sentence may not challenge its legality after violating the terms of probation.
[2] A defendant waives the right to challenge a sentence as illegal by accepting and enjoying probation, which he subsequently violates.
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Join FLexlaw to unlock all legal intelligence“Appellant could have challenged his sentence immediately following the Villery decision while still incarcerated for the manslaughter conviction. He waived this right by accepting and enjoying his probation, which he then violated in May of 1982.”
Establishes the doctrine of waiver through acceptance and enjoyment of probation followed by violation of its terms.
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Join FLexlaw to unlock all legal intelligenceIn 1978, Whitchard was charged with manslaughter by operation of a motor vehicle and pled guilty as part of a negotiated plea. He was sentenced to thr…
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PER CURIAM.
Appellant was originally charged in 1978 with manslaughter by operation of a motor vehicle. As part of a negotiated plea of guilty, he was sentenced to three years of incarceration to be followed by four years probation. Appellant served the three year term of incarceration and was on probation when he was charged with first-degree murder. Appellant pled guilty to second-degree murder and was sentenced to thirty years imprisonment. His probation was revoked and a fifteen-year sentence was imposed to run concurrently with the thirty-year sentence. In this pro se appeal, appellant contends that the original sentence of three years followed by a probation violated the Florida Supreme Court’s subsequent decision in Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981).1
In none of the cases relied on by appellant,2 where the illegal sentences were vacated, had the defendant challenged the sentence after having violated the terms of probation. Appellant could have challenged his sentence immediately following the Villery decision while still incarcerated for the manslaughter conviction. He waived this right by accepting and enjoying his probation, which he then violated in May of 1982. In similar cases we have held consistently that a guilty defendant may not accept and enjoy a probation, then challenge it as illegal after violating its terms. See, e.g., Preston v. State, 411 So. 2d 297 (Fla. 3d DCA), rev. denied, 418 So. 2d 1280 (Fla.1982); King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1197 (Fla.1980).
Appellant further contends that the sentencing court erred in failing to award credit for time served on the original sentence prior to commencement of the probation term. See State v. Jones, 327 So. 2d 18 (Fla.1976); Ferguson v. State, 372 So. 2d 209 (Fla. 3d DCA 1979). ' This issue may not be raised for the first time on appeal, but instead should be presented to the trial court by a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Spurlock v. State, 449 So. 2d 973 (Fla. 5th DCA 1984); Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981).
Affirmed.
. In Villery, the Florida Supreme Court held that the period of incarceration which may be imposed as a condition of probation must be less than one year. . Appellant cites the following cases in support of his contention that the initial sentence should be vacated: Forbert v. State, 437 So. 2d 1079 (Fla. 1983); Brod v. State, 437 So. 2d 152 (Fla. 1983); Chaney v. State, 452 So. 2d 1148 (Fla. 5th DCA 1984); Santana v. State, 442 So. 2d 1103 (Fla. 3d DCA 1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Domingo Antonio Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989)…ntenced to community control over which only Parole and Probation Commission had jurisdiction; no complaint of error in being placed on probation rather than community control because of acceptance of benefits of that placement); Whitchard v. State, 459 So. 2d 439 (Fla. 3d DCA 1984) (defendant who pled guilty in exchange for a sentence of three years imprisonment and four years probation “may not .accept and enjoy a probation, then challenge it as illegal after violating its terms”); Preston v. State, 411 So.…
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Bashlor v. State, 586 So. 2d 488 (Fla. 1st DCA 1991)…requirements, which are to the benefit of the defendant and to which he agreed, may not be challenged after the defendant has accepted the benefits flowing from the plea, but has failed to carry out the conditions imposed on him. Witchard v. State, 459 So. 2d 439 (Fla. 3d DCA 1984); Preston v. State, 411 So. 2d 297 (Fla. 3d DCA 1982); King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1197 (Fla.1980) and Smith v. State, 345 So. 2d 1080 (Fla. 3d DCA 1977), see also Madrigal v. State, 54…
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Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992)…plaining that the sentence is illegal in an appeal from an order revoking probation. Bashlor v. State, 586 So. 2d 488 (Fla. 1st DCA1991), review denied, 598 So. 2d 75 (Fla.1992); Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA1984); Whitchard v. State, 459 So. 2d 439 (Fla. 3d DCA1984); Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA1983), review denied, 451 So. 2d 850 (Fla.1984). Indeed, Ferguson was a direct appeal from the improper sentence. However, Bryant was not, but was, as is the case at bar, an appeal f…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Forbert v. State, 437 So. 2d 1079 (Fla. 1983)
- Shearund Duron King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979)
- Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981)
- Spurlock v. State, 449 So. 2d 973 (Fla. 5th DCA 1984)
- Ruiz v. State, 411 So. 2d 297 (Fla. 3d DCA 1982)
- Preston v. State, 411 So. 2d 297 (Fla. 3d DCA 1982)
- Brod v. State, 437 So. 2d 152 (Fla. 1983)
- Ferguson v. State, 372 So. 2d 209 (Fla. 3d DCA 1979)