LUIS VILLABOL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Luis Villabol appealed his split sentence (4.5 years prison plus probation for aggravated assault and aggravated battery) following revocation of his original community control. The court affirmed the revocation but reversed the illegal probationary portion that exceeded statutory maximums and struck an unlawful house arrest condition.
The court affirmed the revocation of probation but reversed portions of the sentence. The 4.5-year prison term plus five years probation for aggravated assault (a third-degree felony) exceeded the five-year statutory maximum, requiring reduction of the probationary portion to no more than six months. House arrest is impermissible as a standalone probation condition but may be imposed for up to two years as a condition of community control. An explicit house arrest condition without written permission was struck as illegal.
[1] A sentence for a third-degree felony may not exceed five years in total sanction.
[2] A court may revoke probation for a technical violation, even if the violation relates to a condition originally imposed as community control.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Since this offense is a third degree felony, the total sanction may not exceed five years.”
Establishes the statutory maximum for the aggravated assault conviction that was violated by the imposed sentence.
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Join FLexlaw to unlock all legal intelligenceIn 1989, Villabol pleaded guilty to aggravated assault and aggravated battery based on two separate incidents and received a two-year community contro…
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CURRY, CHARLES B., Associate Judge.
Appellant Luis Villabol presents several challenges to the split sentence he currently is serving. We affirm in part and reverse in part.
In 1989, based on two separate incidents, Villabol was charged with aggravated assault and aggravated battery. §§ 784.021, 784.045, Fla.Stat. (1987). In exchange for a plea of guilty Villabol received a two-year term of community control followed by ten years probation. In May, 1990, after one previous violation and reinstatement, Villa-bol was accused of leaving his residence without permission. Based on this incident the court revoked both the community control and probation. For the offense of aggravated assault the court imposed a prison sentence of four and one-half years, followed by five years probation. A consecutive term of fifteen years probation was imposed for the aggravated battery conviction.
The state confesses error with respect to the first issue raised in Villabol’s brief. The sentence for aggravated assault, as presently structured, exceeds the statutory maximum. Since this offense is a third degree felony, the total sanction may not exceed five years. § 775.082(3)(d), Fla.Stat. (1991). Accordingly, we direct the circuit court, on remand, to decrease the probationary portion of the sentence to no more than six months.
Villabol next argues that it was improper to revoke his probation for his failure to remain confined to his residence. He reasons that “house arrest” is not a permissible condition of probation. Youm v. State, 579 So. 2d 309 (Fla. 2d DCA 1991). Instead, this “technical violation ... went only to the aggravated assault charge” for which Villabol originally received community control. We disagree. See Stafford v. State, 455 So. 2d 385 (Fla.1984).
Finally, Villabol questions a number of the conditions imposed in connection with the new term of probation to commence upon his release from incarceration. The state concedes, and we agree, that condition 32, to the effect Villabol may not leave his house without written permission, is illegal and must be stricken. Youm. If, after remand, the court continues to believe that Villabol should be subject to “house arrest,” such confinement may not exceed two years as a condition of community control. Id.
Several other conditions are criticized in the brief. However, none result in an illegal sentence, and they cannot be reviewed on appeal since Villabol made no contemporaneous objection. McPike v. State, 473 So. 2d 291 (Fla. 2d DCA 1985). With regard to certain conditions that Villa-bol describes as “impermissibly vague,” we adopt the state’s reasoning that such conditions “are to be interpreted under a common sense standard.” Should the state later seek to revoke Villabol’s probation for violating these conditions, they recognize that any such violation must be willful. Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983).
Affirmed in part, reversed in part, and remanded with instructions.
FRANK, A.C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gamble v. State, 685 So. 2d 1310 (Fla. 2d DCA 1996)…ked Gamble’s community control and probation and sentenced him to twenty-five years imprisonment. Gamble’s initial complaint, that his probation should not have been revoked because it had not yet commenced, is without merit. See Villabol v. State, 595 So. 2d 1057 (Fla. 2d DCA 1992). Gamble’s three allegations pertaining to the ineffectiveness of his attorney at the revocation hearing and sentencing are, however, meritorious and provide a basis for 3.850 relief. Grier v. State, 424 So. 2d 992 (Fla. 2d DCA 198…
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Bebout v. State, 904 So. 2d 613 (Fla. 4th DCA 2005)…the duration of a community control sentence may not exceed two years. A court may not evade the two-year limit by sentencing a defendant to a term of probation in excess of two years, with a special condition of house arrest. See Villabol v. State, 595 So. 2d 1057, 1058 (Fla. 2d DCA 1992); Coleman v. State, 564 So. 2d 1238 (Fla. 5th DCA 1990). Against the sentence imposed in response to his motion to correct sentence, appellant is entitled to credit for the one year, ten months and five days that he spent on…
Authorities Cited
- Vendul Oliver Stafford v. State, 455 So. 2d 385 (Fla. 1984)
- McPIKE v. State, 473 So. 2d 291 (Fla. 2d DCA 1985)
- Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983)
- Yourn v. State, 579 So. 2d 309 (Fla. 2d DCA 1991)