DENNIS WOOLLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1984-11-07
No. 83-2463
RYDER, C.J., and CAMPBELL, J., concur.
459 So. 2d 1101 Florida District Court of Appeal, Second District (1984) Caution
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Defendant appeals the revocation of his probation, conviction for grand theft, and sentences imposed for burglary and grand theft. The appellate court affirmed the probation revocation and grand theft conviction but remanded for correction of sentencing errors regarding time-served credit and court costs.


Holding

The court affirmed the probation revocation and grand theft conviction. The record supported the trial court's finding of probation violation. The motion to suppress was properly denied because defendant failed to preserve the reasonable suspicion argument for appeal. The sentences require correction: time-served credit must apply to both concurrent sentences, and court costs must be corrected from $50.00 to $30.00 to match the oral pronouncement.


Headnotes

[1] A trial court's revocation of probation is supported by the evidence heard at trial when the greater weight of the evidence shows the defendant committed the crime.

[2] A defendant waives the right to appeal a search and seizure issue if the defendant accedes to the state's argument regarding reasonable suspicion and fails to preserve th…

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Key Quotes

“Although under Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981), the burden of proof to establish an exception to the Fourth Amendment shifts to the state when a defendant shows a warrantless governmental search of his person or effects, in this case the state did carry its burden.”

Establishes that the state met its burden to justify the warrantless search under the statutory exception, and defendant waived the issue by not raising reasonable suspicion.

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Facts & Procedural History

Defendant was placed on four years probation for burglary on June 23, 1982. On February 22, 1983, defendant committed grand theft, and an affidavit of…

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Opinion of the Court
LEHAN, Judge.

LEHAN, Judge.

Defendant appeals from an order revoking his probation, a conviction for grand theft, and sentences imposed for burglary, the charge for which he had been put on probation, and grand theft. We affirm the revocation of probation and the conviction for grand theft but remand for correction of the sentence.

On June 23, 1982, defendant was placed on four years probation for burglary. On March 28, 1983, an affidavit of violation of probation was filed alleging that defendant had violated his probation by committing a grand theft on February 22, 1983. The evidentiary hearing on the charge of violation of probation was held at the same time as the trial for the grand theft charge. After the trial was concluded, but before the jury returned with a verdict, the trial court determined that defendant had violated his probation.

Defendant contends that the trial court failed to make an adequate finding that the greater weight of the evidence had shown defendant had committed the crime. We disagree. The record supports the trial court’s revocation of probation based on the evidence heard at trial.

Defendant also contends that the trial court erred in denying his motion to suppress the stolen property which resulted in the charge of grand theft against defendant. We disagree. The motion to suppress alleged that the search and seizure was warrantless, unreasonable, and a violation of defendant’s rights under the Fourth Amendment to the United States Constitution. At the hearing on the motion to suppress the state responded that a warrant was unnecessary because section 232.-256, Florida Statutes (1983), allows school officials to search a student’s locker if there is reasonable suspicion that the locker contains an illegally possessed object. The state argued that the defendant had not alleged lack of reasonable suspicion as a ground for his motion and that the state, therefore, would not present the testimony of its witnesses to prove the existence of reasonable suspicion. Defense counsel nevertheless neither raised nor argued lack of reasonable suspicion and, in effect, by only arguing other aspects unrelated to reasonable suspicion, acceded to the state’s argument.

Although under Morales v. State, 407 So. 2d 321 (Fla. 3d DCA 1981), the burden of proof to establish an exception to the Fourth Amendment shifts to the state when a defendant shows a warrantless governmental search of his person or effects, in this case the state did carry its burden. If, as here, the state prima facie carries its burden of proof by showing that section 232.256 applies and the defendant accedes to the state’s position, defendant has not preserved the point for appeal because the trial court was given no opportunity to address the issue which defendant now raises on appeal. The reasonable suspicion required by section 232.256 is different from probable cause. State v. D.T.W., 425 So. 2d 1383 (Fla. 1st DCA 1983).

As his final point, defendant raises several alleged errors in sentencing. First, although the sentences on the grand theft charge and burglary charge are to run concurrently, defendant was given credit for twenty-seven days time served only on the burglary charge, not on the grand theft charge. We agree with defendant that credit for time served should apply to both concurrent sentences. Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984). Also, in the court’s oral pronouncement of sentence, the defendant was ordered to pay a total of $30.00 in court costs, but the written judgment shows an imposition of $50.00 in costs. The written judgment should be corrected to conform to the oral pronouncement of sentence.

Finally, defendant relies upon Jenkins v. State, 444 So. 2d 947 (Fla.1984), and King v. State, 445 So. 2d 1108 (Fla. 2d DCA 1984), for his contention that because he was not given notice of the court’s intention to impose court costs and an opportunity to object, those costs should be stricken. However, those cases involved indigents, and defendant had not been declared indigent at the time of sentencing.

The revocation of probation and the conviction for grand theft are affirmed, but the cause is remanded to the trial court for correction of the sentencing consistent with this opinion.

RYDER, C.J., and CAMPBELL, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Darrel Michael Abbott v. State, 478 So. 2d 885 (Fla. 2d DCA 1985)
    …is convictions for grand theft and burglary. Of the issues raised alleging errors in sentencing, we find merit in only one issue. We agree with appellant that credit for time served should apply equally to all concurrent sentences. Woolley v. State, 459 So. 2d 1101 (Fla. 2d DCA 1984); Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984), Bevins v. State, 412 So. 2d 456 (Fla. 2d DCA 1982). The record before us reflects that two of appellant’s four concurrent sentences specified 120 days credit for jail time while…
  • Kord v. State, 508 So. 2d 758 (Fla. 4th DCA 1987)
    …4 So. 2d 723 (Fla. 1st DCA 1984); Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982); Toombs v. State, 404 So. 2d 766 (Fla. 3d DCA 1981), rev. denied, 412 So. 2d 471 (Fla.1982). The rule applies as well to the imposition of costs. Woolley v. State, 459 So. 2d 1101 (Fla. 2d DCA), rev. denied, 466 So. 2d 218 (Fla.1985). See also Evans v. State, 490 So. 2d 1071 (Fla. 4th DCA 1986). AFFIRMED IN PART; REVERSED IN PART; REMANDED. HERSEY, C.J., and DELL and STONE, JJ., concur.…
  • Irons v. State, 498 So. 2d 958 (Fla. 2d DCA 1986)
    …stopped him pursuant to a BOLO. Irons’ sole burden was to show the absence of a warrant. At this point, the burden shifted to the state to demonstrate that the police acted within a recognized exception to the warrant requirement. Woolley v. State, 459 So. 2d 1101, 1102 (Fla.2d DCA .1984), petition for review denied, 466 So. 2d 218 (Fla.1985); Walker v. State, 433 So. 2d 644, 645 (Fla.2d DCA 1983). The trial judge erred in denying appellant’s motion to suppress based on the legal insufficiency of his motion.…

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